Journalist harassment case: No intention to interfere in order of Faez Isa bench, says SC

ISLAMABAD: The government on Wednesday told the Supreme Court that if individual parties or litigants are allowed to pick and choose benches of their preference, this may result in complete chaos, which would seriously undermine the system of administration of justice in the country.

A five-member larger bench of the apex court, headed by acting Chief Justice Umer Ata Bandial, heard a matter pertaining to the invocation of suo moto jurisdiction of the Supreme Court under Article 184(3) of the Constitution.

Other members of the bench included Justice Ijazul Ahsen, Justice Muneeb Akhtar, Justice Qazi Muhammad Amin Ahmed and Justice Muhammad Ali Mazhar. Assisting the court on the matter, Attorney General Khalid Javed, while commencing his arguments, diverted the attention of the court to a note by Justice Qazi Faez Isa that appeared in the press without any contradiction. “Before giving my opinion regarding the invocation of suo moto jurisdiction of the Supreme Court under Article 184(3) of the Constitution, I want to clarify an issue which was raised by Justice Qazi Faez Isa,” the AG submitted. He said that according to the note, Justice Qazi Faez Isa had stated that one bench cannot monitor the proceedings of another bench. In his note, Justice Qazi Faez Isa had stated no jurisdiction is conferred, which permits one bench to monitor the working of another bench, let alone to hold its orders in abeyance. He had observed that Article 175(2) of the Constitution stipulates that, no court shall have jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.

The attorney general, however, submitted that during 1997, one bench was found giving directions against another bench. “In my opinion, the present larger bench is not a monitoring bench but has been originated in lieu of the order passed by a two-member bench led by Justice Qazi Faez Isa and Justice Jamal Khan Mandokel on August 20, the attorney general submitted.

Justice Qazi Muhammad Amin Ahmed observed that the important issue is the dignity of the court and its unity. “Would it not be possible that the larger bench should also include the judges of the two-member bench that passed the order on August 20,” the judge asked the AG.

Khalid Javed, however, submitted that it is the prerogative of the Chief Justice to constitute a bench and to include the judges in the bench as well. Acting Chief Justice Umer Ata Bandial observed that they have no intention to interfere in the matter of two-member bench but the order passed by the said bench created an issue which has to be addressed.

There is a proper structure for invoking original jurisdiction of the Supreme Court under Article 184(3) of the Constitution and if it was destroyed, the whole system will collapse, Justice Bandial remarked adding that no confidence was shown on the institution. “It is very easy to demolish but very difficult to construct”, the acting CJP added. The attorney general submitted that the court has been very flexible in allowing invoking of jurisdiction under Article 184(3), and the court’s jurisdiction is neither curtailed by rules nor by administrative orders/circulars, some regulatory mechanism is nevertheless warranted in order to ensure smooth functioning of the court keeping in view the comity between the learned judges of the court. The AG submitted that if each bench independently operates and entertained petitions under Article 184(3) and proceeded to hear the matter and pronounced orders/judgments without reference to the Chief Justice who is entrusted with fixation of Roster, there may be conflicting and even contradictory orders/judgments. He submitted that the Supreme Court, being the apex court, there will be no forum to challenge the conflicting orders/judgments.

He submitted that even more compelling consideration, which calls for regulating the procedure for invoking the jurisdiction, is that if individual parties or litigants are allowed to pick and choose benches of their preference, this may result in complete chaos, which would seriously undermine the system of administration of justice in the country. “This may also result in allegations of nepotism and favouritism, which though will invariably be frivolous and unwarranted, yet it will shake the public confidence in the institution of the judiciary,” Khalid Javed contended.

Divulging on the original suo moto jurisdiction of the Supreme Court under Article 184(3) of the Constitution, the attorney general submitted that there are three limitations on exercise of jurisdiction under Article 184(3), adding that there must be a question of public importance, the question of public importance must be with reference to the enforcement of Fundamental Rights conferred by Chapter 1 of Part and orders are to be passed of the nature as mentioned in Article 199.

The third restriction is diluted by the power conferred on the Supreme Court under Article 187, which exists independent of Article 199, the AG submitted adding that the jurisdiction under Article 184(3) is conferred on the Supreme Court, which means all the judges of the Supreme Court sitting in judicial proceedings, either collectively or in different benches at the principal seat as well as different registries.

He submitted that the procedure relating to hearing of petitions under Article 184(3) is prescribed in Order XXV of the Supreme Court Rules, 1980. However, he said that the Supreme Court has held that neither the Rules, 1980 nor any administrative order of the Chief Justice can curtail or restrict the jurisdiction conferred on the Supreme Court under Article 184(3).

The AG cited orders were passed under Article 184(3) by some benches of the Supreme Court at Quetta and Peshawar registries against the-then Chief Justice of Pakistan restraining him from functioning while the-then Chief Justice passed administrative orders while other benches at the principal seat passed orders against other benches at the registries. He submitted that the past practice of the Supreme Court indicates that the court has entertained and heard petitions under Article 184(3), invoking the methods adding that petitions filed under Article 184(3) as per the procedure prescribed in Order XXV Rule 6 of the Rules, 1980, by presentation through the office and taken up for hearing before an appropriate bench as per the roaster fixed by the Chief Justice.

Similarly, he submitted that an overwhelming number of cases falling under Article 184(3) were heard by benches presided over by the Chief Justice.

The AG recalled that the Chief Justice of Pakistan himself took suo motu notice of a matter or on the basis of information received from any source that it calls for proceeding under Article 184(3). He submitted that the Chief Justice either constituted a bench for hearing or referred the matter to a bench already constituted to hear the matter. He further submitted that in the past, the benches constituted to hear such matters were mostly presided over by the Chief Justice himself.

In this respect, the attorney general recalled that in one case, a learned bench while hearing a matter which could not be proceeded due to a Dharna at Faizabad, took notice of the Dharna and directed issuance of notices to various departments/ authorities.

While the bench did not refer the matter for orders of the Chief Justice, the office on a note and with the approval of the Chief Justice, numbered the SMC and fixed the same for hearing before the same bench.

He said that keeping in view the past practice, the court has demonstrated great flexibility and entertained information/petition/letter, etc., from any source if it warranted proceedings under Article 184(3). He submitted that the matter has been heard by a bench after the approval of the Chief Justice.

The attorney general also cited a case regarding the powers of chairman National Accountability wherein a bench had directed to place the order before the Chief Justice to take a suo moto notice in order to protect the fundamental rights. Similarly, he said, that in another case of one Sidra Irum versus the state January 19, 2017, a three-member bench of the apex court comprising Justice Dost Muhammad Khan, Justice Qazi Faez Isa and Justice Faisal Arab recommended to the Chief Justice for taking suo moto notice. The AG further cited another case taken up by a two-member bench on 12th October, 2020 comprising Justice Qazi Faez Isa and Justice Aminuddin regarding the appointment of Ahmed Awais as Advocate General Punjab wherein notice was issued to Imran Khan and the AG was asked to reply, after passing an order to place it before the Chief Justice for an appropriate order. In this respect, the office was not put up before the Chief Justice.

Justice Qazi Muhammad Amin Ahmed asked the attorney general as to if a matter is recommended to the Chief Justice, then can the Chief Justice decline to the recommendation?

The attorney general replied that the choice is of Chief Justice. Acting Chief Justice Umer Ata Bandial recalled that in the case of Justice Qazi Faez Isa, the bench had referred the matter to Chief Justice for constitution of the bench. At this, the attorney general recalled that Justice Muneeb Akhtar had remarked in that matter that Chief Justice is the master of roaster. Justice Ijazul Ahsen observed that once the suo moto jurisdiction is invoked by the Chief Justice, it is not necessary that the Chief Justice must head the bench for hearing a matter. “In many cases, other benches heard the case but the Chief Justice can invoke the suo moto jurisdiction,” the judge observed.

To a question as to whether the Chief Justice can refuse to take up a matter as a suo moto notice, the attorney general replied that the Chief Justice cannot decline but may take time for consideration but if it is definitely a matter of public importance, he could invoke suo moto jurisdiction.

Meanwhile, the attorney general, while giving his recommendations, submitted that the jurisdiction conferred under Article 184(3) being plenary and inquisitorial rather than adversarial in nature, and given our past experience, its frequent invocation calls for caution.

It needs to be invoked as well as exercised in a manner which lends credibility, certainty and consistency, the AG submitted adding that the court’s primary function being appellate and with an unprecedented and proliferating pendency exceeding 50,000 cases, it calls for restraint in invoking this jurisdiction and leave it for exceptional cases where the high courts cannot provide relief to the people or where there is necessity to address the issue at the level of apex court given some most exceptional circumstances.

He recommended that in order to lend credibility, certainty and consistency, all powers exercised and exercisable in the process ought to be based on objective criteria leaving minimum scope for use of discretionary powers and ensuing misperception that entails open-ended authority and jurisdiction.

He recommended that human rights petitions or information coming in any form before the office of the court and falling within the ambit of Article 184(3) may in routine be placed before a bench of not more than two judges as per the roster and subject to administrative order of the Chief Justice. He submitted that the bench so constituted will decide whether further proceedings under Article 184(3) are warranted. If it is so held, the bench may frame legal questions and issue notices to the respondents and refer the matter to the Chief Justice for constitution of a five-member bench for further hearing of the matter.

The AG said that a matter referred by any learned judge to the chief justice for consideration under Article 184(3) may be placed before a bench of not more than two judges as per the roster and subject to administrative order of the Chief Justice. The bench so constituted will decide whether further proceedings under Article 184(3) are warranted. If it is so held, the bench may frame legal questions and issue notices to the respondents and refer the matter to the Chief Justice for constitution of a five-member bench to hear the matter. He said that where a bench of the Supreme Court in a pending case either on its own or on any petition or letter by a party or any source during such proceedings decides that the matter should proceed under Article 184(3), it may frame legal questions and issue notices to the respondents.

The matter may then be referred to the Chief Justice for constitution of a five-member bench to hear the petition, the AG recommended, adding that where legal questions have been framed and notices have been issued to the respondents, the Chief Justice may be pleased to constitute a special five-member bench to finally hear and decide the petition under Article 184(3).

The attorney general submitted that the order passed on August 20 by two-member bench directing the office to fix the matter on August 26 before the same bench may be modified by the larger bench by referring the matter to the chief justice as per consistent past practice for fixation of the titled case.

Meanwhile, the court adjourned the hearing for today (Thursday) wherein President Supreme Court Bar Association Abdul Latif Afridi and Vice Chairman Pakistan Bar Council Khushdil Khan will commence their arguments to assist the court on the matter in hand.

Earlier, in his letter to the chief justice, Justice Isa raised an objection over the formation of a five-member larger bench calling the new bench "unconstitutional".

In his letter, Justice Isa said the two-member bench was not informed before the five-member larger bench was constituted. The Constitution of Pakistan lists various jurisdictions of the Supreme Court, he said, adding that the apex court has no jurisdiction to monitor the affairs of its own bench.

A five-member bench has no jurisdiction to hear the case, Justice Isa said. If a five-member larger bench continues hearing the case, it will be unconstitutional, he wrote.

Justice Isa argued that once the case was decided, if anyone felt it was not dealt with in accordance to the Constitution, they had the option to review it. He said the Constitution does not allow "monitoring jurisdiction".

Critiquing the SC registrar, Justice Isa said that the registrar had acted to "serve the interest of the executive and to protect his colleagues". Justice Isa also said that a copy of his letter should be uploaded on the website of the Supreme Court.