ISLAMABAD: The Supreme Court (SC) on Wednesday ordered the postponement of cases being heard under Article 184(3) of the Constitution till the amendments made in the Supreme Court Rules 1980 regarding the discretionary powers of the Chief Justice of Pakistan to form benches.
A three-member bench of the apex court, headed by Justice Qazi Faez Isa and comprising Justice Aminuddin Khan and Justice Shahid Waheed, issued a majority order of 2-1 in a suo moto case regarding the grant of 20 marks to Hafiz-e-Quran while seeking admission in MBBS/BDS Degree under Regulation 9(9) of the MBBS and BDS (Admissions, House Job and Internship) Regulations, 2018.
Justice Waheed, who also wrote a dissenting note against the order, raised objections and said that “The points raised and discussed in the order were not subject to the case.” CJP Umar Ata Bandial had formed a three-judge special bench headed by Justice Qazi Faez Isa to hear a suo motu case related to examining the grant of 20 additional marks to a Hafiz-e-Quran student while admitting them for an MBBS/BDS degree.
The order said, “The interest of citizens therefore will be the best served to postpone the hearing of this case, and all of the other cases under Article 184(3) of the Constitution till the matters are first attended to by making requisite rules in terms of Article 191 of the Constitution.”
The court held that neither the Constitution nor the rules grant to the Chief Justice or the Registrar, the power to make special benches, select judges who will be on other benches and decide the cases that they will hear. “Important matters, which arose out of Article 184(3) of the Constitution, were decided, with significant consequences on the economy, politics and on other aspects of the lives of Pakistanis”, the order said. “With regard to Article 184(3) of the Constitution, the court held that there are three categories of cases.”
Firstly, when a formal application seeking enforcement of Fundamental Rights is filed. Secondly, when (suo motu) notice is taken by the Supreme Court or its judges. And, thirdly cases of immense constitutional importance and significance (which may also be those in the first and second categories). Order XXV of the rules only attends to the first category of cases.
The court further held that there is no procedure prescribed for the second and third category of cases, adding that the situation is exacerbated as there is no appeal against a decision under Article 184(3) of the Constitution.
Similarly, the court held that the rules also do not provide how to attend to the following matters: (a) how such cases be listed for hearing, (b) how bench/benches to hear such cases be constituted and (c) how judges hearing them are selected.
“The Constitution does not grant to the chief justice unilateral and arbitrary power to decide the above matters,” the order said. “With respect, the chief justice cannot substitute his personal wisdom with that of the Constitution”, the order noted, adding that 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 court directed that in view of the public importance of this matter, and as it attends to citizens’ fundamental rights, this order will also be translated into the national language of Pakistan which is Urdu, however, the English version will also be treated as official.