Justice Isa questions formation of larger bench in journalists’ harassment case
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Journalist harassment case: No intention to interfere in order of Faez Isa bench, says SC
Sohail Khan
Thursday, Aug 26, 2021
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.
Sohail Khan
Thursday, Aug 26, 2021
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.
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SC judge suggests Justice Isa join bench hearing journalist case
Nasir Iqbal
Published August 26, 2021
• AG backs suggestion; Justice Bandial says larger bench has no intention to interfere in the two-judge bench’s order
• Justice Isa says the larger bench proceeded on ‘misconception’
ISLAMABAD: One of the five judges of the Supreme Court’s larger bench in the journalist harassment case has suggested that the two judges who had initially taken up the case be also made part of the larger bench to help strengthen public confidence in the judiciary.
“Would not it be appropriate that the two judges [Justice Qazi Faez Isa and Justice Jamal Khan Mandokhel], who earlier issued August 20 order, be made part of this bench?” observed Justice Qazi Mohammad Amin Ahmed while pointing towards government’s top lawyer Khalid Jawed Khan on Wednesday.
While the attorney general replied in the affirmative, acting chief justice Umar Ata Bandial, who is heading the five-judge bench, made it clear that the court had no intention of interfering in the substantive order of Aug 20 but that order [of the two-member SC bench] created certain difficulties and therefore needed to be addressed.
However, Justice Qazi Faez Isa in a note argued that the Aug 23 order of the larger bench proceeded on ‘misconception’ as if the two-judge bench had taken suo motu notice of journalists’ harassment.
Justice Qazi Amin is the member of the Justice Bandial-led bench that is seeking to determine procedures for invoking suo motu actions on matters of public importance.
In response to the Justice Amin’s suggestion, the AG said the formation of the benches fell within the exclusive domain of the chief justices though the larger the bench, merrier would it be.
At the outset, Mr Khan also asserted that the existing five-judge bench hearing the journalist harassment matter was not a “monitoring bench” (in reference to Justice Isa’s note stating that no jurisdiction is conferred which permits one bench to monitor the working of another bench, let alone to hold its orders in abeyance). The attorney general insisted that the present bench was not a monitoring bench but an enlarged bench that had taken up a separate proceeding, which was not part heard and therefore could be taken up.
Justice Isa, in his note to the larger bench, stated that if one bench of the apex court starts monitoring the workings of another bench, or different benches start to undo, supplant or set aside the orders of other benches, it would result in chaos and the collapse of the judicial system.
Referring to Justice Amin’s suggestion, Justice Bandial observed that formation of larger bench affected working of courts that had been experienced during the past one and a half years. He claimed the present larger bench was not pre-empting anything but it would be appropriate to explore some structure to manage petitions under Article 184(3) of the Constitution.
“You cannot entertain documents by handing over at the Bar (in the courtroom) instead of getting it registered at the office first, otherwise the entire system would collapse,” he feared.
While referring to such practice, Justice Bandial said one could not destroy the structure established under the Constitution.
Justice Muneeb Akhtar highlighted that the key question was about who could invoke the suo motu jurisdiction. He observed that even a bench could do so but referring the matter to the Chief Justice of Pakistan was merely an administrative exercise.
The AG argued that he did not have any cavil with the contents of the Aug 20 order of the two-judge bench but one possible outcome of the present proceedings could be that the last paragraph of that order was modified to the extent that the harassment matter be referred to the CJP instead of fixing it before the same two-judge bench for Aug 26.
Citing instances and judgments in which the matter was referred to the CJP for initiating suo motu notice, the AG argued that the jurisdiction conferred under Article 184(3) was plenary and inquisitorial rather than adversarial, its frequent invocation called for caution.
He contended that the suo motu needed to be invoked and exercised in a manner that lent credibility, certainty and consistency. According to him, the court’s primary function being appellate, with an unprecedented and proliferating pendency exceeding 50,000 cases, calls for restraint in invoking this jurisdiction by leaving it for exceptional cases where the high courts cannot provide relief to the people or where there is necessity to address issues at the level of apex court given exceptional circumstances.
The AG argued the human rights petitions or information falling within the ambit of Article 184(3) should be placed before a bench of not more than two judges, “subject to administrative order of CJP”. According to him, the bench so constituted would decide whether further proceedings under Article 184(3) were warranted and if it was so held, the bench could frame legal questions and issue notices to the respondents and refer the matter to the CJP for constitution of a five-judge bench for further hearing.
The attorney general was of the opinion the same procedure be repeated if the matter was referred by a judge. And where the bench of the apex court in a pending case either on its own or on any petition decided that the matter should proceed under Article 184(3), it may frame legal questions and issue notices to the respondents and refer the matter to CJP for the constitution of a five-judge bench.
Justice Isa’s note
In a note to the larger bench, Justice Isa wrote that its Aug 23 order proceeded on misconception like the two-judge bench took suo motu notice. The apex court had for the last six decades consistently held that rules of procedures of the court were designed to help and to thwart the grant to the people of their rights, he added.
Referring to the July 19, 2005 circular entitled: Standing Operational Procedure for Exercising suo motu powers within the contemplation of 184(3), Justice Isa stated that CJP did not have any power to formulate SOPs. The circular was self-serving to empower the CJP that the Constitution does not permit, the note added.
Justice Isa explained that although the CJP was empowered to constitute benches, he could not determine which case should be fixed before which particular benches except when it was under the unusual circumstances in view of the division of opinion or a member of the bench stated that a particular case should not be placed before him.
He also regretted that the note prepared by the SC registrar on the Aug 20 order for the larger bench in fact proceeded to protect the government’s interest. Pointing out that he had worked in the PM Office before becoming the registrar, Justice Isa said the Constitution mandated separation of the judiciary from the executive.
In one of the cases, Justice Isa mentioned, notice was taken on an anonymous WhatsApp message from an undisclosed number challenging the levy of the federal advance income tax and excise of duty and sales tax on services on mobile phone top ups. That bench suspended the levy of all taxes and resulted in the loss of Rs100 billion, which could not be retrieved, he regretted. Likewise, he said, the country suffered an astronomical financial loss when petitions under Article 184(3) were filed in the Reko Diq exploration matter and resulted in a whopping $6.4 billion award against Pakistan.
Justice Isa said the present case required immediate attention due to which he did not refer the matter to the CJP for the constitution of a bench. The application by the Press Association of the Supreme Court was urgent and time sensitive as the journalists were being abducted, beaten up and shot at, he said. If on the account of SC’s tardiness, harm came to another journalist who would be responsible, he questioned.
Published in Dawn, August 26th, 2021
Nasir Iqbal
Published August 26, 2021
• AG backs suggestion; Justice Bandial says larger bench has no intention to interfere in the two-judge bench’s order
• Justice Isa says the larger bench proceeded on ‘misconception’
ISLAMABAD: One of the five judges of the Supreme Court’s larger bench in the journalist harassment case has suggested that the two judges who had initially taken up the case be also made part of the larger bench to help strengthen public confidence in the judiciary.
“Would not it be appropriate that the two judges [Justice Qazi Faez Isa and Justice Jamal Khan Mandokhel], who earlier issued August 20 order, be made part of this bench?” observed Justice Qazi Mohammad Amin Ahmed while pointing towards government’s top lawyer Khalid Jawed Khan on Wednesday.
While the attorney general replied in the affirmative, acting chief justice Umar Ata Bandial, who is heading the five-judge bench, made it clear that the court had no intention of interfering in the substantive order of Aug 20 but that order [of the two-member SC bench] created certain difficulties and therefore needed to be addressed.
However, Justice Qazi Faez Isa in a note argued that the Aug 23 order of the larger bench proceeded on ‘misconception’ as if the two-judge bench had taken suo motu notice of journalists’ harassment.
Justice Qazi Amin is the member of the Justice Bandial-led bench that is seeking to determine procedures for invoking suo motu actions on matters of public importance.
In response to the Justice Amin’s suggestion, the AG said the formation of the benches fell within the exclusive domain of the chief justices though the larger the bench, merrier would it be.
At the outset, Mr Khan also asserted that the existing five-judge bench hearing the journalist harassment matter was not a “monitoring bench” (in reference to Justice Isa’s note stating that no jurisdiction is conferred which permits one bench to monitor the working of another bench, let alone to hold its orders in abeyance). The attorney general insisted that the present bench was not a monitoring bench but an enlarged bench that had taken up a separate proceeding, which was not part heard and therefore could be taken up.
Justice Isa, in his note to the larger bench, stated that if one bench of the apex court starts monitoring the workings of another bench, or different benches start to undo, supplant or set aside the orders of other benches, it would result in chaos and the collapse of the judicial system.
Referring to Justice Amin’s suggestion, Justice Bandial observed that formation of larger bench affected working of courts that had been experienced during the past one and a half years. He claimed the present larger bench was not pre-empting anything but it would be appropriate to explore some structure to manage petitions under Article 184(3) of the Constitution.
“You cannot entertain documents by handing over at the Bar (in the courtroom) instead of getting it registered at the office first, otherwise the entire system would collapse,” he feared.
While referring to such practice, Justice Bandial said one could not destroy the structure established under the Constitution.
Justice Muneeb Akhtar highlighted that the key question was about who could invoke the suo motu jurisdiction. He observed that even a bench could do so but referring the matter to the Chief Justice of Pakistan was merely an administrative exercise.
The AG argued that he did not have any cavil with the contents of the Aug 20 order of the two-judge bench but one possible outcome of the present proceedings could be that the last paragraph of that order was modified to the extent that the harassment matter be referred to the CJP instead of fixing it before the same two-judge bench for Aug 26.
Citing instances and judgments in which the matter was referred to the CJP for initiating suo motu notice, the AG argued that the jurisdiction conferred under Article 184(3) was plenary and inquisitorial rather than adversarial, its frequent invocation called for caution.
He contended that the suo motu needed to be invoked and exercised in a manner that lent credibility, certainty and consistency. According to him, the court’s primary function being appellate, with an unprecedented and proliferating pendency exceeding 50,000 cases, calls for restraint in invoking this jurisdiction by leaving it for exceptional cases where the high courts cannot provide relief to the people or where there is necessity to address issues at the level of apex court given exceptional circumstances.
The AG argued the human rights petitions or information falling within the ambit of Article 184(3) should be placed before a bench of not more than two judges, “subject to administrative order of CJP”. According to him, the bench so constituted would decide whether further proceedings under Article 184(3) were warranted and if it was so held, the bench could frame legal questions and issue notices to the respondents and refer the matter to the CJP for constitution of a five-judge bench for further hearing.
The attorney general was of the opinion the same procedure be repeated if the matter was referred by a judge. And where the bench of the apex court in a pending case either on its own or on any petition decided that the matter should proceed under Article 184(3), it may frame legal questions and issue notices to the respondents and refer the matter to CJP for the constitution of a five-judge bench.
Justice Isa’s note
In a note to the larger bench, Justice Isa wrote that its Aug 23 order proceeded on misconception like the two-judge bench took suo motu notice. The apex court had for the last six decades consistently held that rules of procedures of the court were designed to help and to thwart the grant to the people of their rights, he added.
Referring to the July 19, 2005 circular entitled: Standing Operational Procedure for Exercising suo motu powers within the contemplation of 184(3), Justice Isa stated that CJP did not have any power to formulate SOPs. The circular was self-serving to empower the CJP that the Constitution does not permit, the note added.
Justice Isa explained that although the CJP was empowered to constitute benches, he could not determine which case should be fixed before which particular benches except when it was under the unusual circumstances in view of the division of opinion or a member of the bench stated that a particular case should not be placed before him.
He also regretted that the note prepared by the SC registrar on the Aug 20 order for the larger bench in fact proceeded to protect the government’s interest. Pointing out that he had worked in the PM Office before becoming the registrar, Justice Isa said the Constitution mandated separation of the judiciary from the executive.
In one of the cases, Justice Isa mentioned, notice was taken on an anonymous WhatsApp message from an undisclosed number challenging the levy of the federal advance income tax and excise of duty and sales tax on services on mobile phone top ups. That bench suspended the levy of all taxes and resulted in the loss of Rs100 billion, which could not be retrieved, he regretted. Likewise, he said, the country suffered an astronomical financial loss when petitions under Article 184(3) were filed in the Reko Diq exploration matter and resulted in a whopping $6.4 billion award against Pakistan.
Justice Isa said the present case required immediate attention due to which he did not refer the matter to the CJP for the constitution of a bench. The application by the Press Association of the Supreme Court was urgent and time sensitive as the journalists were being abducted, beaten up and shot at, he said. If on the account of SC’s tardiness, harm came to another journalist who would be responsible, he questioned.
Published in Dawn, August 26th, 2021
Justice Isa usually objects and questions others, but never answered the questions about his properties and wealth. Same corrupt 'Patwari' mentality.
Isa Sahib, keep carrying this attitude on, maybe someday you will be rewarded for it.
Isa Sahib, keep carrying this attitude on, maybe someday you will be rewarded for it.
ghazi52
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Only CJP can take suo motu notice, rules Supreme Court
Haseeb Bhatti
August 26, 2021
Chief Justice of Pakistan
A five-member bench of the Supreme Court on Thursday ruled that only the chief justice of Pakistan (CJP) could take suo motu notice on his "discretion and shall do so if requested or recommended by a bench" of the apex court.
The order, a copy of which is available with Dawn.com, stated that "the chief justice of Pakistan is the sole authority by and through whom the said jurisdiction (suo motu) can be, and is to be, invoked/assumed".
"No bench may take any step or make any order (whether in any pending proceedings or otherwise) as would or could constitute exercise of the suo motu jurisdiction (such as, but not limited to, the issuance of any notice, making any enquiry or summoning any person or authority or any report unless and until the chief justice has invoked/assumed the said jurisdiction," it added.
A five-judge bench, headed by Acting Chief Justice Umar Ata Bandial and comprising Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Qazi Mohammad Amin Ahmad and Justice Mohammad Ali Mazhar, also ruled that the August 20 order by another SC bench on a petition related to the harassment of journalists stood "recalled" and all filings stood "disposed of".
It added that the "substantive claims" made in the application by the Press Association of the Supreme Court (PAS) and other petitioners would be placed in front of the chief justice for consideration.
On Friday, a two-member SC bench consisting of Justice Qazi Faez Isa and Justice Jamal Khan Mandokhel had observed that since the application had raised matters of public importance with reference to the enforcement of fundamental rights, it met the criteria for invoking Article 184(3) of the Constitution under which suo motu is justified.
In its August 20 order, the Supreme Court had asked three senior officials to appear before it to hear the government's version on the rising incidents of harassment of journalists.
It had also issued notices to the secretaries of information and broadcasting, religious affairs and human rights ministries as well as to the Council of Pakistan Newspaper Editors (CPNE), the All Pakistan Newspapers Society (APNS), the Pakistan Broadcasters Association (PBA), the Pakistan Federal Union of Journalists (PFUJ) and the Pakistan Electronic Media Regulatory Authority (Pemra), asking them to state whether the allegations made in the application were correct or not.
However, acting CJP Bandial proceeded to constitute a larger five-judge bench on Saturday to provide clarity with regard to the invocation of the court's suo motu jurisdiction.
The new bench then put the August 20 order in abeyance on Monday and observed that its implementation may obscure and unsettle the practice of invoking suo motu jurisdiction. It also sought assistance from the stakeholders in determining the contours of exercising suo motu actions.
"SC will stand as a wall with journalists'
During the hearing today, Justice Bandial said there was "no difference of opinion" on the harassment of journalists.
He said that the application filed by the Press Association of Supreme Court and others would still be valid and action would be taken.
However, he noted that the Supreme Court had to take action in accordance with the law and its authority.
"If something is done to journalists, Supreme Court will stand as a wall with them. Protecting the Constitution and ensuring basic rights is the responsibility of the judiciary," observed Justice Ahsan.
Justice Amin said journalists would "never be disappointed" by the Supreme Court.
PSA President Amjad Bhatti said the apex court had raised legal questions, therefore, journalists could not present arguments in cooperation.
Talking about mistakes in the application, Justice Amin observed that it was missing the names of the parties concerned and different journalists had signed the application on different dates.
On the matter of taking suo motu notice, Justice Bandial noted that it was the chief justice's authority to constitute a bench and fix a date for hearing of a suo motu notice case.
A similar argument was presented by the vice-chairman of the Pakistan Bar Council (PBC), who said that nobody had the authority to fix a case before a particular bench for hearing.
"There should not be an obstacle to the provision of justice on the basis of technicalities," he added, arguing that a nine-member SC bench had already decided that the apex court was bound to follow the established procedure.
Haseeb Bhatti
August 26, 2021
Chief Justice of Pakistan
A five-member bench of the Supreme Court on Thursday ruled that only the chief justice of Pakistan (CJP) could take suo motu notice on his "discretion and shall do so if requested or recommended by a bench" of the apex court.
The order, a copy of which is available with Dawn.com, stated that "the chief justice of Pakistan is the sole authority by and through whom the said jurisdiction (suo motu) can be, and is to be, invoked/assumed".
"No bench may take any step or make any order (whether in any pending proceedings or otherwise) as would or could constitute exercise of the suo motu jurisdiction (such as, but not limited to, the issuance of any notice, making any enquiry or summoning any person or authority or any report unless and until the chief justice has invoked/assumed the said jurisdiction," it added.
A five-judge bench, headed by Acting Chief Justice Umar Ata Bandial and comprising Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Qazi Mohammad Amin Ahmad and Justice Mohammad Ali Mazhar, also ruled that the August 20 order by another SC bench on a petition related to the harassment of journalists stood "recalled" and all filings stood "disposed of".
It added that the "substantive claims" made in the application by the Press Association of the Supreme Court (PAS) and other petitioners would be placed in front of the chief justice for consideration.
On Friday, a two-member SC bench consisting of Justice Qazi Faez Isa and Justice Jamal Khan Mandokhel had observed that since the application had raised matters of public importance with reference to the enforcement of fundamental rights, it met the criteria for invoking Article 184(3) of the Constitution under which suo motu is justified.
In its August 20 order, the Supreme Court had asked three senior officials to appear before it to hear the government's version on the rising incidents of harassment of journalists.
It had also issued notices to the secretaries of information and broadcasting, religious affairs and human rights ministries as well as to the Council of Pakistan Newspaper Editors (CPNE), the All Pakistan Newspapers Society (APNS), the Pakistan Broadcasters Association (PBA), the Pakistan Federal Union of Journalists (PFUJ) and the Pakistan Electronic Media Regulatory Authority (Pemra), asking them to state whether the allegations made in the application were correct or not.
However, acting CJP Bandial proceeded to constitute a larger five-judge bench on Saturday to provide clarity with regard to the invocation of the court's suo motu jurisdiction.
The new bench then put the August 20 order in abeyance on Monday and observed that its implementation may obscure and unsettle the practice of invoking suo motu jurisdiction. It also sought assistance from the stakeholders in determining the contours of exercising suo motu actions.
"SC will stand as a wall with journalists'
During the hearing today, Justice Bandial said there was "no difference of opinion" on the harassment of journalists.
He said that the application filed by the Press Association of Supreme Court and others would still be valid and action would be taken.
However, he noted that the Supreme Court had to take action in accordance with the law and its authority.
"If something is done to journalists, Supreme Court will stand as a wall with them. Protecting the Constitution and ensuring basic rights is the responsibility of the judiciary," observed Justice Ahsan.
Justice Amin said journalists would "never be disappointed" by the Supreme Court.
PSA President Amjad Bhatti said the apex court had raised legal questions, therefore, journalists could not present arguments in cooperation.
Talking about mistakes in the application, Justice Amin observed that it was missing the names of the parties concerned and different journalists had signed the application on different dates.
On the matter of taking suo motu notice, Justice Bandial noted that it was the chief justice's authority to constitute a bench and fix a date for hearing of a suo motu notice case.
A similar argument was presented by the vice-chairman of the Pakistan Bar Council (PBC), who said that nobody had the authority to fix a case before a particular bench for hearing.
"There should not be an obstacle to the provision of justice on the basis of technicalities," he added, arguing that a nine-member SC bench had already decided that the apex court was bound to follow the established procedure.
ghazi52
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New SC bench to hear media’s ‘harassment’ case
Court will examine grievances of applicants on touchstone of Article 184(3)
Hasnaat Malik
August 28, 2021
A file photo of the Supreme Court of Pakistan. PHOTO: EXPRESS
ISLAMABAD: Acting Chief Justice of Pakistan Umar Ata Bandial on Friday formed a three-member bench, comprising Justice Ijazul Ahsan, Justice Munib Akhter and Justice Qazi Muhammad Amin Ahmed to hear the journalists’ “harassment” case.
The bench will examine the grievances of the applicants on the touchstone of Article 184(3) of the Constitution – which deals with question of public importance with reference to the enforcement of any of the fundamental rights – and the entitlement of the applicants to any relief thereunder.
The acting chief justice noted that “journalists render valuable service to the people in keeping them abreast with events and informed opinion”, adding that their work enjoyed the protection of Article 18, Article 19 and Article 19(A) of the Constitution.
“The violation of rights guaranteed by the said articles, prima facie, raises questions of public importance, attracting the constitutional jurisdiction of the Supreme Court under Article 184(3) of the Constitution,” he observed.
The matter has been fixed for hearing on Monday.
Earlier this week, a Supreme Court larger bench headed by Justice Bandial, had recalled its two-member order regarding harassment of media persons by state institutions.
The court also held that CJP was the “sole authority by and through whom the suo motu jurisdiction can be, and is to be, invoked/assumed” under Article 184 (3) of the Constitution”.
A division bench of the apex court comprising Justice Qazi Faez Isa and Justice Jamal Khan Mandokhail on August 20, directly entertained the Press Association of Supreme Court’s (PAS) application against harassment of media personnel by state agencies.
The division bench also summoned several government functionaries on August 26 before it. Interestingly, both the judges belong to the province of Balochistan.
On August 23, a five-judge larger bench of the apex court, headed by the acting CJP and comprising Justice Ijaz ul Ahsan, Justice Munib Akhtar, Justice Qazi Muhammad Amin Ahmed and Justice Muhammad Ali Mazhar, “held in abeyance” the two-member bench order as it “deviated from established practice of entertaining suo motu notice”.
The larger bench also posed a question of whether the suo motu jurisdiction could be invoked under Article 184 (3) of the Constitution. Notices were also issued to attorney general for Pakistan, Supreme Court Bar Association president and Pakistan Bar Council vice chairman for legal assistance. However, the bench ignored their contentions.
The larger bench while announcing the order said for detailed reasons to be recorded later and subject to what is set out therein by way of amplification or otherwise: it is declared that the invocation/assumption of the suo motu jurisdiction of this court under Article 184(3) of the Constitution is based on, and shall be guided by, the following principles.
Firstly, the court declared that the CJP was the sole authority by and through whom the said jurisdiction could be, and was to be, invoked/ assumed.
Secondly, the CJP may invoke/assume the said jurisdiction in his discretion and shall do so if so requested or recommended by a bench of the court.
Thirdly, it said: "No bench may take any step or make any order (whether in any pending proceedings or otherwise) as would or could constitute exercise of the suo motu jurisdiction (such as, but not limited to, the issuance of any notice, making any enquiry or summoning any person or authority or any report) unless and until the Chief Justice has invoked/assumed the said jurisdiction."
The order also said that all matters already pending in respect of, or involving, the suo motu jurisdiction of the court shall continue to be heard and disposed of by such benches as are constituted from time to time by the chief justice. The larger bench also held that the August 20 order stood recalled.
Court will examine grievances of applicants on touchstone of Article 184(3)
Hasnaat Malik
August 28, 2021
A file photo of the Supreme Court of Pakistan. PHOTO: EXPRESS
ISLAMABAD: Acting Chief Justice of Pakistan Umar Ata Bandial on Friday formed a three-member bench, comprising Justice Ijazul Ahsan, Justice Munib Akhter and Justice Qazi Muhammad Amin Ahmed to hear the journalists’ “harassment” case.
The bench will examine the grievances of the applicants on the touchstone of Article 184(3) of the Constitution – which deals with question of public importance with reference to the enforcement of any of the fundamental rights – and the entitlement of the applicants to any relief thereunder.
The acting chief justice noted that “journalists render valuable service to the people in keeping them abreast with events and informed opinion”, adding that their work enjoyed the protection of Article 18, Article 19 and Article 19(A) of the Constitution.
“The violation of rights guaranteed by the said articles, prima facie, raises questions of public importance, attracting the constitutional jurisdiction of the Supreme Court under Article 184(3) of the Constitution,” he observed.
The matter has been fixed for hearing on Monday.
Earlier this week, a Supreme Court larger bench headed by Justice Bandial, had recalled its two-member order regarding harassment of media persons by state institutions.
The court also held that CJP was the “sole authority by and through whom the suo motu jurisdiction can be, and is to be, invoked/assumed” under Article 184 (3) of the Constitution”.
A division bench of the apex court comprising Justice Qazi Faez Isa and Justice Jamal Khan Mandokhail on August 20, directly entertained the Press Association of Supreme Court’s (PAS) application against harassment of media personnel by state agencies.
The division bench also summoned several government functionaries on August 26 before it. Interestingly, both the judges belong to the province of Balochistan.
On August 23, a five-judge larger bench of the apex court, headed by the acting CJP and comprising Justice Ijaz ul Ahsan, Justice Munib Akhtar, Justice Qazi Muhammad Amin Ahmed and Justice Muhammad Ali Mazhar, “held in abeyance” the two-member bench order as it “deviated from established practice of entertaining suo motu notice”.
The larger bench also posed a question of whether the suo motu jurisdiction could be invoked under Article 184 (3) of the Constitution. Notices were also issued to attorney general for Pakistan, Supreme Court Bar Association president and Pakistan Bar Council vice chairman for legal assistance. However, the bench ignored their contentions.
The larger bench while announcing the order said for detailed reasons to be recorded later and subject to what is set out therein by way of amplification or otherwise: it is declared that the invocation/assumption of the suo motu jurisdiction of this court under Article 184(3) of the Constitution is based on, and shall be guided by, the following principles.
Firstly, the court declared that the CJP was the sole authority by and through whom the said jurisdiction could be, and was to be, invoked/ assumed.
Secondly, the CJP may invoke/assume the said jurisdiction in his discretion and shall do so if so requested or recommended by a bench of the court.
Thirdly, it said: "No bench may take any step or make any order (whether in any pending proceedings or otherwise) as would or could constitute exercise of the suo motu jurisdiction (such as, but not limited to, the issuance of any notice, making any enquiry or summoning any person or authority or any report) unless and until the Chief Justice has invoked/assumed the said jurisdiction."
The order also said that all matters already pending in respect of, or involving, the suo motu jurisdiction of the court shall continue to be heard and disposed of by such benches as are constituted from time to time by the chief justice. The larger bench also held that the August 20 order stood recalled.
Mahmood-ur-Rehman
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Only one problem on defense forum Looter Faez Isa.We have the most corrupt judiciary in the worldJustice Isa questions formation of larger bench in journalists’ harassment case
Haseeb Bhatti
August 25, 2021
Justice Qazi Faez Isa says in letter to chief justice that if new bench continues to hear journalists' harassment case then it will be a transgression of the Constitution. — SC website/File
Justice Qazi Faez Isa has penned a letter to the Chief Justice of Pakistan (CJP), questioning the decision to form a larger bench in the journalists’ harassment case and terming the formation of the new bench a transgression of the Constitution, it emerged on Wednesday.
On August 20, a two-judge Supreme Court (SC) bench, comprising Justice Isa and Justice Jamal Khan Mandokhel, had taken up the case on an application moved by the Press Association of the Supreme Court, which highlighted frequent incidents of harassment of journalists.
In an order issued the same day, the two-judge bench said that since the application had raised matters of public importance with reference to the enforcement of fundamental rights, it met the criteria for invoking the suo motu jurisdiction of the SC under Article 184(3) of the Constitution.
However, Justice Umar Ata Bandial, who is the acting chief justice at present since Justice Gulzar Ahmed is abroad on leave, proceeded to constitute a larger five-judge bench on Saturday to provide clarity with regard to the invocation of the court’s suo motu jurisdiction.
The larger bench includes Justice Umar Ata Bandial, Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Qazi Muhammad Amin Ahmad and Justice Muhammad Ali Mazhar.
The new bench then put the Aug 20 order in abeyance on Monday and observed that its implementation may obscure and unsettle the practice of invoking suo motu jurisdiction.
Responding to the development, in a letter to the CJP dated Aug 24, Justice Isa said the Constitution detailed the different jurisdictions of the SC and they could also be conferred by law.
"No jurisdiction is conferred which permits one bench to monitor the working of another bench, let alone to hold its orders in abeyance," Justice Isa wrote.
He added that the Constitution did not permit "monitoring jurisdiction" and therefore, the five-member bench did not have the jurisdiction to hear the case.
"If they continue hearing it they will transgress the Constitution. Consequently, any purported order passed by the purported larger bench would be a constitutional nullity, void and of no legal effect," said Justice Isa.
He also said that the two-member bench — comprising him and Justice Jamal Khan Mandokhel — was not informed about the formation of the larger bench, and had not decided anything in the case.
He said that once the case was decided, if anyone felt that it was not dealt with in accordance to the Constitution or the law then they had the option to review it.
Justice Isa argued that if one bench started to monitor the activities and orders of another bench then it would lead to "chaos and the collapse of the judicial system".
"Once the honourable chief justice has constituted the benches then cases should be fixed in routine before such benches without any filtration," he said.
Regarding the Aug 23 order, Justice Isa said it was subject to "a number of misconceptions", adding that the Aug 20 order was passed only after it was noted that the matter was of public importance seeking enforcement of fundamental rights.
He said that the case was "urgent and time sensitive" and needed immediate attention.
"To shy away from exercising powers vested in this court under Article 184(3) of the Constitution [...] in a matter of extreme urgency involving the lives of journalists would, in my opinion, constitute dereliction of duty," he said.
He pointed out that suo motu notices had been taken in the past without considering whether the issues came within the purview of Article 184(3) or fulfilled its mandatory requirements.
Justice Isa also criticised the SC registrar, saying that he had acted to "serve the interest of the executive and to protect his colleagues".
Pointing out that he had worked in the Prime Minister's Office prior to becoming a registrar, Justice Isa said the Constitution mandated the separation of the judiciary from the executive and critiqued the induction of government servants as registrars.
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SC open to talks with lawyers to devise effective criteria for elevation of judges: CJP
BR Web Desk
13 Sep 2021
Chief Justice of Pakistan (CJP) Gulzar Ahmed has said that the Supreme Court (SC) and the superior judiciary are open to talks with lawyers to devise effective criteria for the elevation of judges to the top court, it was reported on Monday.
Addressing a ceremony to mark the start of the new judicial year on Monday, Justice Gulzar said that the protest organised by the lawyers' community on September 9 against the appointment of junior judges to the SC was "uncalled for".
The top judge pointed out that the reason for holding the protest by lawyers on SC premises last week is unknown.
He maintained no one from the legal fraternity approached him regarding the issue of the appointment of judges despite the fact that he is always ready to meet them for an amicable solution to their problems.
E-courts beneficial in addressing problems
The CJP said that e-courts have addressed problems faced by litigants to a great deal. Justice Gulzar added that the video-link facility also played a key part in ensuring smooth operation of judicial functions during the Covid pandemic.
He mentioned that last year, the main reason for the backlog of cases was adjournments given to advocates who were unable to reach Islamabad due to various reasons. In addition, he said the coronavirus outbreak also affected the rate of disposal of cases.
Cases settled
The chief justice said that during the outgoing judicial year, the SC decided 12,968 cases, including 6,797 civil petitions, 1,916 civil appeals, 459 civil review petitions, 2,625 criminal petitions, and 681 criminal appeals.
He said that a total of 45,644 cases were pending, while 20,910 fresh cases were instituted, the CJP said.
Lawyers' protest
On September 10, lawyers went on strike and boycotted court proceedings against the appointment of junior judges to the SC.
Lawyers boycotted the court proceedings on the call of various lawyers’ bodies including the Supreme Court Bar Association, Pakistan Bar Council, Sindh High Court Bar Association, and Sindh Bar Council.
The bench and the bar have been drifting away from each other following differences over the appointment of judges to the apex court that also led to protests by the legal fraternity at various levels.
Due to the strike, counsels did not represent the petitioners, and litigants faced difficulties. Due to the strike, hearings of cases were adjourned.
- Says e-courts have addressed problems faced by litigants to a great deal
BR Web Desk
13 Sep 2021
Chief Justice of Pakistan (CJP) Gulzar Ahmed has said that the Supreme Court (SC) and the superior judiciary are open to talks with lawyers to devise effective criteria for the elevation of judges to the top court, it was reported on Monday.
Addressing a ceremony to mark the start of the new judicial year on Monday, Justice Gulzar said that the protest organised by the lawyers' community on September 9 against the appointment of junior judges to the SC was "uncalled for".
The top judge pointed out that the reason for holding the protest by lawyers on SC premises last week is unknown.
He maintained no one from the legal fraternity approached him regarding the issue of the appointment of judges despite the fact that he is always ready to meet them for an amicable solution to their problems.
E-courts beneficial in addressing problems
The CJP said that e-courts have addressed problems faced by litigants to a great deal. Justice Gulzar added that the video-link facility also played a key part in ensuring smooth operation of judicial functions during the Covid pandemic.
He mentioned that last year, the main reason for the backlog of cases was adjournments given to advocates who were unable to reach Islamabad due to various reasons. In addition, he said the coronavirus outbreak also affected the rate of disposal of cases.
Cases settled
The chief justice said that during the outgoing judicial year, the SC decided 12,968 cases, including 6,797 civil petitions, 1,916 civil appeals, 459 civil review petitions, 2,625 criminal petitions, and 681 criminal appeals.
He said that a total of 45,644 cases were pending, while 20,910 fresh cases were instituted, the CJP said.
Lawyers' protest
On September 10, lawyers went on strike and boycotted court proceedings against the appointment of junior judges to the SC.
Lawyers boycotted the court proceedings on the call of various lawyers’ bodies including the Supreme Court Bar Association, Pakistan Bar Council, Sindh High Court Bar Association, and Sindh Bar Council.
The bench and the bar have been drifting away from each other following differences over the appointment of judges to the apex court that also led to protests by the legal fraternity at various levels.
Due to the strike, counsels did not represent the petitioners, and litigants faced difficulties. Due to the strike, hearings of cases were adjourned.
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