Judge questions legal authority of SC HR cell

Justice Minallah in his dissenting note says body lacks power to perform judicial functions

ISLAMABAD:

Supreme Court’s Justice Athar Minallah in his dissenting note held that the proceedings of the SC Human Rights Cell (SCHRC) were “illegal and ultra vires the Constitution” as a three-judge bench, led by Chief Justice of Pakistan, heard the issue of a complaint filed by a woman against a housing society owner during the tenure of former CJP Saqib Nisar, who heard it in his chamber.

In his dissenting note, Justice Minallah also asked the SC registrar to restrain the cell from undertaking any activity initiated by the CJP or its director general and issue summons, orders, directions as well as letters having no “legal backing”.

Earlier, the bench, which also included Justice Aminuddin Khan, in its majority written order held that the SCHRC could only consider the complaints it received, and if they met the test of Article 184(3) of the Constitution, meaning it was a matter of public importance with reference to the enforcement of any of the fundamental rights, put it up for consideration of the CJP.

It continued that the CJP in his chamber could only direct that it should be numbered and put up for consideration in court.

Read More: SC calls into question workings of its human rights cell

However, the order noted that since the promulgation of the SC (Practice and Procedure) Act, 2023, the CJP had lost even this power as now a committee, under section 2(1) of the law, comprising of the chief justice and the next two senior judges, would determine whether or not the matter should be numbered as well as scheduled in the court for hearing.

Justice Minallah in his dissenting note observed that the SC had been conferred with jurisdiction under Articles 184, 185 and 186, while it exercised the power of review under Article 188. He added that the extraordinary original jurisdiction conferred under Article 184(3) could only be exercised by the top court and, that too, in the manner described under the SC Rules, 1980.

“The [SC Human Rights] Cell is bereft of jurisdiction or power to, directly or indirectly, perform any functions or exercise purported powers, which are judicial in nature or may affect the rights of the parties in any manner,” the judge argued.

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“The only function that the Cell may perform is to receive representations, letters or correspondence from the general public and then place them before the chief justice to be dealt with under the Rules of 1980,” he maintained.

“Any proceedings undertaken or held by the chief justice or the [SCHRC] director general and summons, orders, directions or letters issued pursuant thereto are declared as illegal and ultra vires the Constitution. The registrar of this court may, therefore, restrain the Cell from undertaking any activity, proceedings or to issue summons, orders, directions and letters having no legal backing", read Justice Minallah’s dissenting note.

The judge noted that the court had been informed that the cell was set up in the SC building in 2005.

“It has been functioning since then. We have also been informed that it was not established under any law, nor did its proceedings, held by the chief justice in his chambers, or orders/directions and letters issued to public bodies and organisations have any legal backing,” he added.

Justice Minallah observed that the orders, directions and letters issued by the cell in the name of the SC created a wrongful impression of being judicial.

“The summons issued to parties and the proceedings held in the chamber of the chief justice or a meeting room, rather than in [an] open court, are likely to infringe the right to a fair trial and due process. The proceedings, orders, directions and letters are taken as those of this court and, therefore, cause grave miscarriages of justice because they can be abused,” he argued.