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Friday March 29, 2024

Notice under Article 184(3): CJ’s approval isn’t ‘substitute for SC order’: Judge

By Ahmad Noorani
May 13, 2018

ISLAMABAD: Justice Qazi Faez Isa, a senior judge of the Supreme Court has stated in his note in a human rights case that the constitution empowers the Supreme Court (SC) to take notice under article 184(3) only after fulfilment of two conditions and even the approval of the Chief Justice is not a substitute for an SC order.

In his note in the HR case HRC. 14959-K/2018, Justice Faez Isa held that under the constitution two basic conditions — public importance and Fundamental Rights — are to be involved in an issue before a notice under article 184(3) can be taken on it and the decision to take such a notice is the constitutional power of the Supreme Court. Justice Isa held, “The approval of the Hon’ble Chief Justice is also not a substitute for an order of the Supreme Court.”

It may be noted that Justice Qazi Faez Isa will become the Chief Justice of Pakistan on September 17, 2023.

During the hearing of a human rights case in Peshawar this week, a three-member bench headed by the Chief Justice Saqib Nisar and including Justice Isa was dissolved and a new two-member bench was constituted excluding Justice Isa after his remarks questioning powers of an officer of the court to issue notices to government functionaries.

The note of the Justice Qazi Faez Isa reads: —

“Qazi Faez Isa, J. Today before a Special Bench eight cases were listed for hearing in the ‘Supplementary Cause List 6-P of 2018’ (“the List”). The file of this case (HRC No.14959-K/2018) comprised all of two pages. Its first page reads as under:

“It is submitted that your honour has desired to call report with respect to disposal of infectious hospital wastes in the province of KPK.

In view of above, if approved, notices be issued to Advocate General, Chief Secretary, Secretary Health and Secretary Local Government, and Secretary Environment Protection Agency (EPA) KPK to appear in person on 19.04.2018 (Thursday) at Branch Registry Peshawar with the requisite report.

Director (HRC)

12.04.2018

Underneath the signature of the said Director is written in hand:

“Seen by HCJ. Approved. [signed] 12.4.18.”

The second page in the file is a copy of the notice issued to those mentioned in the Director’s above note.

2. Due to complete lack of material on file and to understand the genesis of the case, I enquired whether the said Director was present in the court so we could examine the file (if any) containing the material (if any) on the basis of which he had written the aforesaid note, and whether the original jurisdiction of the Supreme Court under Article 184(3) of the Constitution of the Islamic Republic of Pakistan (“the Constitution”) could be invoked. The learned Advocate General of the province (who was standing at the rostrum) was asked to read Article 184(3).

3. Article 184(3) of the Constitution grants to the Supreme Court the power to make an order of the nature mentioned in Article 199 of the Constitution if “the Supreme Court…considers that a question of public importance with reference to the enforcement of any of Fundamental Rights conferred by Chapter I Part-II is involved”. Once the Supreme Court is satisfied that these two conditions (public importance and Fundamental Rights) are involved then the question of enforcement of the relevant Fundamental Rights arises. Needless to state the powers that the Constitution has granted to the Supreme Court cannot be assumed by the said Director. The approval of the Hon’ble Chief Justice is also not a substitute for an order of the Supreme Court.

4. The Director had written similar notes, also dated April 12, 2018, in the cases at serial number 3, 4 and 5 of the List (HRC Nos. 14960-K of 2018, 14962-K of 2018 and 14964-K 2018 respectively). The files of these cases and of those listed at serial numbers 6, 7 and 8 of the List (HRC Nos. 16549-K/2018, 18200-K/2018 and 18879-K/2018) also did not indicate that the Supreme Court had satisfied itself that the abovementioned two conditions had been met.

5. However, before the Article 184(3) could be read the Hon’ble Chief Justice intervened and said that he will be reconstituting the Bench and suddenly rose up. The Bench was then presumably reconstituted, I say presumably because no order was sent to me to this effect. However, a two -member Bench did assemble later, from which I was excluded. This for me is a matter of grave concern. In my humble opinion, it is unwarranted and unprecedented to reconstitute a Bench, in such a manner, whilst hearing a case. To do so undermines the integrity of the system, and may have serious repercussions.

6. Before exercising its original jurisdiction the Supreme Court must satisfy itself that the jurisdiction it is assuming accords with the Constitution. However, even before any opinion could be expressed thereon the matter was cut short as mentioned above.

7. I am constrained to write this as not doing so would weigh heavily on my conscience and I would be abdicating my responsibility as a judge.

Judge

Peshawar

8th May, 2018”. The note concludes.