ISLAMABAD: A two-to-one majority on a special Supreme Court bench issued an order on Wednesday suspending all suo motu cases until the Supreme Court Rules governing the chief justice’s discretionary powers are amended, in accordance with Article 184(3) of the Constitution.
The suo motu case examining the award of 20 additional marks to a Hafiz-e-Quran student while admitting them for an MBBS/BDS degree is what prompted the special bench order. The bench was presided over by Justice Qazi Faez Isa and included Justice Amin-ud-Din Khan and Justice Shahid Waheed. Justice Isa objected to the bench’s formation after Chief Justice of Pakistan (CJP) Umar Ata Bandial appointed a three-member special bench to hear the case.
Objecting to the order and stating that “the points raised and discussed in the order were not subject to the case,” Justice Waheed also wrote a dissenting note. The Supreme Court Rules, 1980 (the Rules), neither permit nor envision special benches, according to the order written by Justice Isa. A Special Bench made up of three Judges was established to hear this case, though. According to the order, there are three types of cases that fall under Article 184(3) of the Constitution. “Only the first category of cases is dealt with by Order XXV of the Rules. The second and third categories of cases have no prescribed procedure. Because there is no right of appeal against a ruling under Article 184(3) of the Constitution, the situation is made worse, the order states.
The order says rules also do not provide how to attend to the following matters:
The majority order further said the Supreme Court comprises the CJP and all judges.
“The Constitution does not grant the Chief Justice unilateral and arbitrary power to decide the above matters. With respect, the Chief Justice cannot substitute his personal wisdom with that of the Constitution,” the order stated.
Collective determination by the chief justice and the judges of the Supreme Court can also not be assumed by an individual, albeit the chief justice, the order said.
“The interest of citizens therefore will be best served to postpone the hearing of this case, and of all other cases under article 184(3) of the Constitution, till the matters noted hereinabove are first attended to by making requisite rules in terms of article 191 of the Constitution.”
Meanwhile, in a bid to bolster checks and balances in the higher judiciary, the National Assembly passed the Supreme Court (Practice and Procedure) Bill, 2023, tabled to limit Pakistan’s top judge’s discretionary powers to take suo motu notice.
The bill was passed hours after National Assembly Standing Committee on Law and Justice gave its consent.
The bill was moved by the government after two Supreme Court judges — Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail — raised questions over the powers of the CJP, saying the apex court “cannot be dependent on the solitary decision of one man, the Chief Justice”.
