Pakistan Supreme Court updates
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Signalian
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At least it’s not a blame game that you will blame everything on one entity which is not even related to 99% of problems that a common man faces in Pakistan.
It’s like a client comes to lawyer with a problem. Lawyers response is blaming military after taking fee and showing inability to do anything.
You needed a scapegoat, you got it mate
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ghazi52
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December 15, 2022
The Supreme Court on Thursday directed the governments of Punjab and Khyber Pakhtunkhwa to implement the Police Order 2002 in order to stamp out unease among the public owing to growing crimes and barred premature transfers and posting in the police department.
A three-member bench comprising Chief Justice of Pakistan Umar Ata Bandial, Justice Ayesha Malik and Justice Athar Minallah issued these directives while hearing a petition against chronic political interference in the transfers and postings of the Punjab police.
In their petitions, Rana Tahir Saleem and Mohammad Javaid apprised the court of the alleged violation of Police Order 2002, mentioning that nine Lahore capital city police officers (CCPOs) and eight inspector generals of police (IGP) were changed between June 7, 2018 and Aug 29, 2022.
The frequent reshuffles reflected that the CCPOs and IGPs had average tenures of 4.5 and 6.2 months only, respectively, according to the petitions.
With the commencement of the hearing today, CJP Bandial noted that officials at the helm must put on record the reasons if any transfer within the police department was inevitable.
“No officer should be removed without the consultation of a senior officer,” he remarked.
The chief justice asked whether the same “formula for good governance” will be pursued in Sindh and Balochistan as well [for the reformation of police working].
He also sought details from Sindh and Balochistan police departments about transfers and postings.
“Will the Punjab government enforce the law or should the court issue directions on it?” CJP questioned while asking authorities to seek a reply from the Punjab government and submit the same before the court.
He stated that people were being affected due to growing crime, adding that police officers should not be transferred at the behest of any MPA.
He observed that appointing a DPO or a CPO was the prerogative of the inspector general of police.
“There is no bar on the premature removal of officers under the law, but the prescribed procedure should be followed,” he said, adding there was a general perception that government uses the police as a political weapon.
Investigation officers should ideally be kept away from other irrelevant work and there should be a separate cadre from them to function properly, he suggested.
CJP Bandial lamented that the police lacked investigative skills.
“Poor evidence is presented in the court that ultimately benefits suspects,” the chief justice observed.
Punjab Advocate General Ahmad Awais told the court that transfers within the department were taking place after consultations.
SC bars premature transfers in police departments
Haseeb BhattiDecember 15, 2022
The Supreme Court on Thursday directed the governments of Punjab and Khyber Pakhtunkhwa to implement the Police Order 2002 in order to stamp out unease among the public owing to growing crimes and barred premature transfers and posting in the police department.
A three-member bench comprising Chief Justice of Pakistan Umar Ata Bandial, Justice Ayesha Malik and Justice Athar Minallah issued these directives while hearing a petition against chronic political interference in the transfers and postings of the Punjab police.
In their petitions, Rana Tahir Saleem and Mohammad Javaid apprised the court of the alleged violation of Police Order 2002, mentioning that nine Lahore capital city police officers (CCPOs) and eight inspector generals of police (IGP) were changed between June 7, 2018 and Aug 29, 2022.
The frequent reshuffles reflected that the CCPOs and IGPs had average tenures of 4.5 and 6.2 months only, respectively, according to the petitions.
With the commencement of the hearing today, CJP Bandial noted that officials at the helm must put on record the reasons if any transfer within the police department was inevitable.
“No officer should be removed without the consultation of a senior officer,” he remarked.
The chief justice asked whether the same “formula for good governance” will be pursued in Sindh and Balochistan as well [for the reformation of police working].
He also sought details from Sindh and Balochistan police departments about transfers and postings.
“Will the Punjab government enforce the law or should the court issue directions on it?” CJP questioned while asking authorities to seek a reply from the Punjab government and submit the same before the court.
He stated that people were being affected due to growing crime, adding that police officers should not be transferred at the behest of any MPA.
He observed that appointing a DPO or a CPO was the prerogative of the inspector general of police.
“There is no bar on the premature removal of officers under the law, but the prescribed procedure should be followed,” he said, adding there was a general perception that government uses the police as a political weapon.
Investigation officers should ideally be kept away from other irrelevant work and there should be a separate cadre from them to function properly, he suggested.
CJP Bandial lamented that the police lacked investigative skills.
“Poor evidence is presented in the court that ultimately benefits suspects,” the chief justice observed.
Punjab Advocate General Ahmad Awais told the court that transfers within the department were taking place after consultations.
ghazi52
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Umer Gujjar
ISLAMABAD (APP): The Supreme Court of Pakistan on Thursday ordered the governments of Punjab and Khyber Pakhtunkhwa provinces to impose Police Order 2002 in a case against transfers and postings of police officers on political grounds.
The court also stopped the provincial governments from transferring the police officers before the time mentioned in the law. The top court said that it was compulsory to write the reasons if the transfer before time was necessary and no officer would be removed from the post without the advice of a senior officer.
Chief Justice of Pakistan Umar Ata Bandial remarked that police officers shouldn’t be transferred on the recommendation of MPAs. District police officer (DPO) and city police officer (CPO) couldn’t be removed before three years in accordance with the law, he observed, adding that the law didn’t prohibit transfers before time but the legal procedure should be followed.
The chief justice remarked that there was an impression that the government had been using police departments for political gains. The investigation officers should be at a distance from other police affairs as per the law, he said, adding that even the IOs should be given separate cadres.
The CJP observed that there was no expertise in the police regarding the investigation. The weak evidence used to be produced during the trial which benefits the accused, he added.
The court said the FIR regarding the attack on former prime minister Imran Khan was not being registered due to political interference and then this court had to give directions.
The apex court remarked why not the same formula of good governance should be applied in Sindh and Balochistan provinces as well.
The SC also sought report from provincial governments regarding the transfers of police officials during the last ten years.
The CJP remarked whether the Punjab government would act as per the law itself or this court should issue an order in this regard. He remarked that the public was facing hardships due to increasing crime and insecurity.
Advocate General Punjab argued that the transfers of the police officers were being made after consultation. The court then adjourned further hearing of the case till the second week of January.
SC orders to impose Police Order 2002
Umer Gujjar
ISLAMABAD (APP): The Supreme Court of Pakistan on Thursday ordered the governments of Punjab and Khyber Pakhtunkhwa provinces to impose Police Order 2002 in a case against transfers and postings of police officers on political grounds.
The court also stopped the provincial governments from transferring the police officers before the time mentioned in the law. The top court said that it was compulsory to write the reasons if the transfer before time was necessary and no officer would be removed from the post without the advice of a senior officer.
Chief Justice of Pakistan Umar Ata Bandial remarked that police officers shouldn’t be transferred on the recommendation of MPAs. District police officer (DPO) and city police officer (CPO) couldn’t be removed before three years in accordance with the law, he observed, adding that the law didn’t prohibit transfers before time but the legal procedure should be followed.
The chief justice remarked that there was an impression that the government had been using police departments for political gains. The investigation officers should be at a distance from other police affairs as per the law, he said, adding that even the IOs should be given separate cadres.
The CJP observed that there was no expertise in the police regarding the investigation. The weak evidence used to be produced during the trial which benefits the accused, he added.
The court said the FIR regarding the attack on former prime minister Imran Khan was not being registered due to political interference and then this court had to give directions.
The apex court remarked why not the same formula of good governance should be applied in Sindh and Balochistan provinces as well.
The SC also sought report from provincial governments regarding the transfers of police officials during the last ten years.
The CJP remarked whether the Punjab government would act as per the law itself or this court should issue an order in this regard. He remarked that the public was facing hardships due to increasing crime and insecurity.
Advocate General Punjab argued that the transfers of the police officers were being made after consultation. The court then adjourned further hearing of the case till the second week of January.
ghazi52
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NBP employees are not govt servants: SC
TerenceISLAMABAD: The Supreme Court held that employees of the National Bank of Pakistan (NBP) are not “government servants” or “civil servants” as defined in the Civil Servants Act, 1973.
The judgment authored by Justice Syed Mansoor Ali Shah said that the NBP, as per Section 3(2) of the National Bank of Pakistan Ordinance, 1949, is a body corporate, and its employees are employees of a statutory corporation, not of the federal government.
“We are cognizant of the legal position that the NBP, being a statutory corporation, is amenable to the writ jurisdiction of the High Courts under Article 199 of the Constitution and its employees when are governed or proceeded against under the statutory rules can also avail the recourse to the writ jurisdiction for the redressal of their grievances in respect of their service matters.”
However, this legal position does not merge the NBP, a separate juristic person, into the federal government, nor in any manner blur the distinction between NBP a Statutory Corporation and the federal government, a constitutional body or in any manner turn the employees of the NBP into the employees of the federal government, said SC judgment.
Justice Syed Mansoor Ali Shah and Justice Muhammad Ali Mazhar passed the verdict against the judgment of Peshawar High Court (PHC) dated 01.10.2019.
The petitioner, Muhammad Naeem, an employee of the NBP, had challenged the said notification of the Finance Division dated 30-12-2015 and the circular of Head Office of the NBP dated 15-01-2016 in the PHC through a writ petition, asserting that the employees of the NBP are government servants/ officers as they fall within the scope of the definition of “public servant” provided in clause ninth of Section 21 and Explanation of Section 161 of the PPC.
The PHC dismissed the writ petition on 01.10.2019, by holding that the NBP is a statutory body and its employees are not civil servants or government servants.
The petitioner approached the apex court against the PHC verdict.
The Court clarified that the terms “civil servant” and “government servant”, having almost the same meaning and scope, are commonly used interchangeably in the civil service laws of Pakistan.
The term “public servant” as defined in Section 21 of the PPC for the purpose of application of that law is; however, of wide import and scope than those terms. It cannot; therefore, be referred to or used as an equivalent or synonym of them, in the context of a person’s civil status, capacity or position.
Copyright Business Recorder, 2022
ghazi52
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Hasnaat Malik
December 23, 2022
A general view of the Supreme Court of Pakistan in Islamabad, Pakistan April 4, 2022. PHOTO: REUTERS
ISLAMABAD: The Supreme Court has held that at least its three-member bench can modify, alter or amend the judgment of a divisional bench of a high court.
A five-page judgment authored by Justice Muhammad Ali Mazhar maintained this while accepting a review petition filed by State Bank of Pakistan (SBP) through its counsel Faisal Siddiqi.
"With all humility to our command, we agree that the two Member Bench, taking into consideration the assiduousness and exactitudes of Order XI of the Supreme Court Rules, 1980, could grant leave or dismiss the civil petition for leave to appeal, but could not modify, alter or amend the judgment of Divisional Bench of High Court for which the matter should have been fixed before a three Member Bench as per the aforesaid Rules," the judgment noted.
A three-judge bench of the apex court led by Justice Sardar Tariq Masood said that the command and dominance of Order XI of the Supreme Court Rules, 1980, is germane to the constitution of benches which unequivocally expounds and enlightens that every cause, appeal or matter shall be heard and disposed of by a bench consisting ofnnot less than three judges to be nominated by the chief justice.
It said that all petitions for leave to appeal, appeals from appellate and revisional judgments, and orders made by a single judge in the high court, and appeals from judgments/orders of the service tribunals or administrative courts, and appeals involving grant of bail/cancellation of bail may be heard and disposed of by a bench of two judges, adding that the chief justice may, in a fit case, refer any cause or appeal as aforesaid to a larger bench.
The court noted that in the instant case, the bench was inclined to grant leave to appeal to a limited extent vis-à-vis the rate of mark-up, adding that it was also a “ground reality” that no leave to appeal was granted by this court against the judgment of the high court.
“It is evident from the order of this court that on the sole statement of the counsel for the respondent No1, the alleged excessive rate of markup was simultaneously modified in the judgment without recording any consensual statement of the petitioner’s counsel.”
The judgment also noted that it was “lucidly translucent without any shadow of doubt that while modifying the judgment of the high court, no leave to appeal was granted by this court, rather the judgment conspicuously reflects that this Court was inclined to grant leave to appeal only for the reason that the rate of 10 percent markup per annum on the value of dollar seemed to be excessive, but on the request of learned counsel for the respondent No. 1, that his client was willing to accept any reduced rate of mark-up, the judgment of the High Court was modified while rebuffing the plea of limitation”.
The review petition was allowed and the main petition restored, which shall be fixed for hearing before a three member-bench for leave to appeal.
SC sets rules for altering division bench verdict
Says at least its three-member bench can modify, alter or amend the judgment of a divisional bench of a high courtHasnaat Malik
December 23, 2022
A general view of the Supreme Court of Pakistan in Islamabad, Pakistan April 4, 2022. PHOTO: REUTERS
ISLAMABAD: The Supreme Court has held that at least its three-member bench can modify, alter or amend the judgment of a divisional bench of a high court.
A five-page judgment authored by Justice Muhammad Ali Mazhar maintained this while accepting a review petition filed by State Bank of Pakistan (SBP) through its counsel Faisal Siddiqi.
"With all humility to our command, we agree that the two Member Bench, taking into consideration the assiduousness and exactitudes of Order XI of the Supreme Court Rules, 1980, could grant leave or dismiss the civil petition for leave to appeal, but could not modify, alter or amend the judgment of Divisional Bench of High Court for which the matter should have been fixed before a three Member Bench as per the aforesaid Rules," the judgment noted.
A three-judge bench of the apex court led by Justice Sardar Tariq Masood said that the command and dominance of Order XI of the Supreme Court Rules, 1980, is germane to the constitution of benches which unequivocally expounds and enlightens that every cause, appeal or matter shall be heard and disposed of by a bench consisting ofnnot less than three judges to be nominated by the chief justice.
It said that all petitions for leave to appeal, appeals from appellate and revisional judgments, and orders made by a single judge in the high court, and appeals from judgments/orders of the service tribunals or administrative courts, and appeals involving grant of bail/cancellation of bail may be heard and disposed of by a bench of two judges, adding that the chief justice may, in a fit case, refer any cause or appeal as aforesaid to a larger bench.
The court noted that in the instant case, the bench was inclined to grant leave to appeal to a limited extent vis-à-vis the rate of mark-up, adding that it was also a “ground reality” that no leave to appeal was granted by this court against the judgment of the high court.
“It is evident from the order of this court that on the sole statement of the counsel for the respondent No1, the alleged excessive rate of markup was simultaneously modified in the judgment without recording any consensual statement of the petitioner’s counsel.”
The judgment also noted that it was “lucidly translucent without any shadow of doubt that while modifying the judgment of the high court, no leave to appeal was granted by this court, rather the judgment conspicuously reflects that this Court was inclined to grant leave to appeal only for the reason that the rate of 10 percent markup per annum on the value of dollar seemed to be excessive, but on the request of learned counsel for the respondent No. 1, that his client was willing to accept any reduced rate of mark-up, the judgment of the High Court was modified while rebuffing the plea of limitation”.
The review petition was allowed and the main petition restored, which shall be fixed for hearing before a three member-bench for leave to appeal.
ghazi52
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Web Desk
tFebruary 23, 2023
ISLAMABAD: A judicial reference was filed against Supreme Court Justice Mazahar Ali Akbar Naqvi in the Supreme Judicial Council (SJC) on Thursday, accusing him of "misconduct" and "amassing illegitimate assets".
The complaint against Justice Naqvi was filed by advocate Mian Dawood for allegedly violating the code of conduct for judges of the Supreme Court issued under Clause (8) of Article 209 of the Constitution.
In a tweet, Dawood said that the reference was filed in the SJC "on the grounds of misconduct, creation of illegal assets, and amassing wealth through frontmen".
He added that a press conference would be held outside the Supreme Court in Islamabad regarding the contents of this reference.
According to the reference, the SC judge and his family members were found "involved in following malpractices and misuse of power in a criminal-designed pattern during his service".
In the complaint, it is alleged that Justice Naqvi used his position "to facilitate his sons and a daughter studying abroad and getting financial gains from Zahid Rafique".
The complaint further claims that the SC judge "openly flaunts his relation with PTI and its leader Imran Khan" and has "influenced" and "manipulated" legal cases, adding that "cases are being fixed" in his court.
The reference further stated that he is "guilty of misconduct and incapable of performing his duties per mandate of law" and "attracts Article 209 for his removal as judge of the Supreme Court".
The reference further stated that the judge "grossly violated" Article 3 and Article 5 of the code of conduct, failing to "be above reproach and for this purpose to keep his conduct in all things official and private, free from impropriety" and employing "the influence of his position to gain undue advantage".
The reference requested an "independent detailed inquiry" against Justice Naqvi in accordance with Sub-clause (b) of Clause (5) of Article 209 of the constitution.
It further requested that "upon verification of the above-mentioned facts," Justice Mazahar Ali Akbar Naqvi be removed from his office as the judge of the Supreme Court of Pakistan.
Earlier, top lawyers’ bodies including the Pakistan Bar Council (PBC) announced filing separate complaints of misconduct in the SJC against Justice Naqvi after audio leaks emerged purportedly featuring a conversation about the fixation of a case with former Punjab chief minister Pervaiz Elahi.
According to the chairman of the executive committee of the PBC, the council had demanded the Chief Justice to take action against the behind-the-scenes characters if the audio is fake or take action against those involved if it is true.
Reference filed against Justice Mazahar Naqvi in SJC
Supreme Court judge accused of 'misconduct' and 'amassing illegitimate assets'Web Desk
tFebruary 23, 2023
ISLAMABAD: A judicial reference was filed against Supreme Court Justice Mazahar Ali Akbar Naqvi in the Supreme Judicial Council (SJC) on Thursday, accusing him of "misconduct" and "amassing illegitimate assets".
The complaint against Justice Naqvi was filed by advocate Mian Dawood for allegedly violating the code of conduct for judges of the Supreme Court issued under Clause (8) of Article 209 of the Constitution.
In a tweet, Dawood said that the reference was filed in the SJC "on the grounds of misconduct, creation of illegal assets, and amassing wealth through frontmen".
He added that a press conference would be held outside the Supreme Court in Islamabad regarding the contents of this reference.
According to the reference, the SC judge and his family members were found "involved in following malpractices and misuse of power in a criminal-designed pattern during his service".
In the complaint, it is alleged that Justice Naqvi used his position "to facilitate his sons and a daughter studying abroad and getting financial gains from Zahid Rafique".
The complaint further claims that the SC judge "openly flaunts his relation with PTI and its leader Imran Khan" and has "influenced" and "manipulated" legal cases, adding that "cases are being fixed" in his court.
The reference further stated that he is "guilty of misconduct and incapable of performing his duties per mandate of law" and "attracts Article 209 for his removal as judge of the Supreme Court".
The reference further stated that the judge "grossly violated" Article 3 and Article 5 of the code of conduct, failing to "be above reproach and for this purpose to keep his conduct in all things official and private, free from impropriety" and employing "the influence of his position to gain undue advantage".
The reference requested an "independent detailed inquiry" against Justice Naqvi in accordance with Sub-clause (b) of Clause (5) of Article 209 of the constitution.
It further requested that "upon verification of the above-mentioned facts," Justice Mazahar Ali Akbar Naqvi be removed from his office as the judge of the Supreme Court of Pakistan.
Earlier, top lawyers’ bodies including the Pakistan Bar Council (PBC) announced filing separate complaints of misconduct in the SJC against Justice Naqvi after audio leaks emerged purportedly featuring a conversation about the fixation of a case with former Punjab chief minister Pervaiz Elahi.
According to the chairman of the executive committee of the PBC, the council had demanded the Chief Justice to take action against the behind-the-scenes characters if the audio is fake or take action against those involved if it is true.
ghazi52
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Hasnaat Maik
February 25, 2023
Despite the passage of three days, the Supreme Court has yet to issue the written order passed on February 23 in the suo motu case related to the delay in the announcement of the date of holding elections in Punjab and Khyber-Pakhtunkhwa.
Lawyers, representing different parties, are perplexed over the delay.
Mansoor Awan, the lawyer representing the PML-N, confirmed to The Express Tribune that the party was yet to receive the written order, which was dictated by Chief Justice of Pakistan Umar Ata Bandial after the first hearing of the case.
He added that the party’s legal team would request the court for the issuance of the written order.
Sources claimed that all the judges, who were part of a nine-member larger bench, had signed the order.
The attorney general for Pakistan's (AGP) Office also confirmed that the order had yet to be received.
There were reports about judges having conflicting opinions over the inclusion of bench member Justice Athar Minallah’s question in the written order.
However, that question would be added in the order as the CJP, while dictating it, had also observed that Justice Minallah’s query would be incorporated in it.
Similarly, some additional notes of the members of the larger bench are expected to be attached with the order.
Lawyers, belonging to the ruling political parties, are speculating that these additional notes can be the main reason for the delay.
Former additional attorney general Tariq Khokhar commenting on the delay in the issuance of the written order has said that an institution that could no longer be trusted to agree upon an inconsequential order is quite alarming. "The fear that it may be self-inflicted makes it worse.”
“Worryingly, there is a talk of the failure of its leadership or its members individually or even collectively", he adds.
The SC’s reputation is at stake as a sense of distrust fermented around its suo motu case against the delay in the announcement of a date for polls in provinces, with now one of the members of the bench also joining the chorus expressing reservations over the move’s legality.
A nine-judge bench, comprising Chief Justice of Pakistan Umar Ata Bandial, Justice Ijazul Ahsan, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, and Justice Minallah, is hearing the case.
Major ruling political parties and superior bars are seeking the recusal of two members of the larger bench – Justice Ahsan and Justice Naqvi.
Even the ‘powerful circles' want this to happen.
One member of the larger bench, Justice Mandokhail, expressed his reservations over invoking the suo motu jurisdiction in the matter.
Justice Minallah questioned whether or not a full court should hear the matter, which fell under Article 184-3 of the Constitution.
It is being witnessed for the first time that one judge, while sitting on the same bench, is raising questions on the conduct of other fellow members.
The division among SC judges is widening with each passing day.
Even after Thursday’s hearing, harsh words were exchanged between some members of the larger bench.
Former Sindh High Court Bar Association president Salahuddin Ahmed said a full court should hear the matter and Justice Mazahar Ali Akbar Naqvi should recuse himself from hearing the case.
PTI lawyer Chaudhry Faisal Hussain said the party had no objection to forming a full court to hear the matter.
He added that the party had complete faith in every SC judge.
It has been learnt that a division bench of the apex court, led by Justice Qazi Faez Isa, was supposed to hear cases at the SC’s Karachi Registry next week but the cause list was cancelled on Saturday.
A debate has also started as whether or not retired judges especially former CJP Saqib Nisar still had influence over the superior judiciary.
Sindh Bar Council (SBC) Vice Chairman Zulfiqar Ali Khan Jalbani and Executive Committee Chairman Inayatullah Morio have expressed their grave concerns over the constitution of the full bench by excluding senior puisne judge Justice Qazi Faez Isa and Justice Sardar Tariq Masood.
“The Sindh Bar Council always believes that [the] power of fixation of roster and cases should not rest exclusively with the chief justice,” they said in a statement.
“It is also expected that Mr Justice Ijazul Ahsan and Mr Justice Mazahar Ali Akbar Naqvi should voluntarily recuse to remain as part of the bench for hearing of this important matter, which proprietary demands from them as [a] clear lack of confidence has been shown upon them by different parties in the proceedings,” the document read.
“The Sindh Bar Council calls upon the Hon’ble Chief Justice of Pakistan to take concrete steps to redress the adverse impression of the recent practice of [the] constitution of benches of his choice especially in political cases to ensure restoration of public confidence in the judiciary as a whole,” it added.
The two SBC office-bearers demanded that a full court hearing of the SC on the issue of elections be held to “give an impartial and neutral image among the legal fraternity and general public”.
SC yet to issue order in suo motu case
Lawyers believe additional notes by judges in matter related to polls may be ‘main reason'Hasnaat Maik
February 25, 2023
Despite the passage of three days, the Supreme Court has yet to issue the written order passed on February 23 in the suo motu case related to the delay in the announcement of the date of holding elections in Punjab and Khyber-Pakhtunkhwa.
Lawyers, representing different parties, are perplexed over the delay.
Mansoor Awan, the lawyer representing the PML-N, confirmed to The Express Tribune that the party was yet to receive the written order, which was dictated by Chief Justice of Pakistan Umar Ata Bandial after the first hearing of the case.
He added that the party’s legal team would request the court for the issuance of the written order.
Sources claimed that all the judges, who were part of a nine-member larger bench, had signed the order.
The attorney general for Pakistan's (AGP) Office also confirmed that the order had yet to be received.
There were reports about judges having conflicting opinions over the inclusion of bench member Justice Athar Minallah’s question in the written order.
However, that question would be added in the order as the CJP, while dictating it, had also observed that Justice Minallah’s query would be incorporated in it.
Similarly, some additional notes of the members of the larger bench are expected to be attached with the order.
Lawyers, belonging to the ruling political parties, are speculating that these additional notes can be the main reason for the delay.
Former additional attorney general Tariq Khokhar commenting on the delay in the issuance of the written order has said that an institution that could no longer be trusted to agree upon an inconsequential order is quite alarming. "The fear that it may be self-inflicted makes it worse.”
“Worryingly, there is a talk of the failure of its leadership or its members individually or even collectively", he adds.
The SC’s reputation is at stake as a sense of distrust fermented around its suo motu case against the delay in the announcement of a date for polls in provinces, with now one of the members of the bench also joining the chorus expressing reservations over the move’s legality.
A nine-judge bench, comprising Chief Justice of Pakistan Umar Ata Bandial, Justice Ijazul Ahsan, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, and Justice Minallah, is hearing the case.
Major ruling political parties and superior bars are seeking the recusal of two members of the larger bench – Justice Ahsan and Justice Naqvi.
Even the ‘powerful circles' want this to happen.
One member of the larger bench, Justice Mandokhail, expressed his reservations over invoking the suo motu jurisdiction in the matter.
Justice Minallah questioned whether or not a full court should hear the matter, which fell under Article 184-3 of the Constitution.
It is being witnessed for the first time that one judge, while sitting on the same bench, is raising questions on the conduct of other fellow members.
The division among SC judges is widening with each passing day.
Even after Thursday’s hearing, harsh words were exchanged between some members of the larger bench.
Former Sindh High Court Bar Association president Salahuddin Ahmed said a full court should hear the matter and Justice Mazahar Ali Akbar Naqvi should recuse himself from hearing the case.
PTI lawyer Chaudhry Faisal Hussain said the party had no objection to forming a full court to hear the matter.
He added that the party had complete faith in every SC judge.
It has been learnt that a division bench of the apex court, led by Justice Qazi Faez Isa, was supposed to hear cases at the SC’s Karachi Registry next week but the cause list was cancelled on Saturday.
A debate has also started as whether or not retired judges especially former CJP Saqib Nisar still had influence over the superior judiciary.
Sindh Bar Council (SBC) Vice Chairman Zulfiqar Ali Khan Jalbani and Executive Committee Chairman Inayatullah Morio have expressed their grave concerns over the constitution of the full bench by excluding senior puisne judge Justice Qazi Faez Isa and Justice Sardar Tariq Masood.
“The Sindh Bar Council always believes that [the] power of fixation of roster and cases should not rest exclusively with the chief justice,” they said in a statement.
“It is also expected that Mr Justice Ijazul Ahsan and Mr Justice Mazahar Ali Akbar Naqvi should voluntarily recuse to remain as part of the bench for hearing of this important matter, which proprietary demands from them as [a] clear lack of confidence has been shown upon them by different parties in the proceedings,” the document read.
“The Sindh Bar Council calls upon the Hon’ble Chief Justice of Pakistan to take concrete steps to redress the adverse impression of the recent practice of [the] constitution of benches of his choice especially in political cases to ensure restoration of public confidence in the judiciary as a whole,” it added.
The two SBC office-bearers demanded that a full court hearing of the SC on the issue of elections be held to “give an impartial and neutral image among the legal fraternity and general public”.
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Correspondent
March 09, 2023
The IHC had ruled against Ministry of Interior Employees Cooperative Housing Society encroaching a land allocated for a state-owned college.
The Supreme Court on Wednesday rejected a plea filed by the Ministry of Interior Employees Cooperative Housing Society against the decision pertaining to its encroachment of a government college.
The cooperative housing society had challenged a verdict by the Islamabad High Court against its encroachment of land allocated for a state-owned college.
However, a three-judge bench of the SC, led by Justice Sardar Tariq Masood, upheld the IHC’s judgment and dismissed the plea of the cooperative housing society.
During the proceedings, Justice Athar Minallah expressed his displeasure over linking the name of a housing society with a government department.
Back when he was the IHC CJ, Justice Minallah observed that titles of government ministries or divisions could not be used by private individuals to run housing societies.
In January last year, the Capital Development Authority gave cooperative housing societies using the names of ministries or government departments a period of three weeks to change their names or face strict action.
In December 2021, Justice Minallah remarked that every state institution was involved in the real estate business and the government departments were running housing societies in their names -- an act that was clearly a conflict of interests.
He added that how could the deputy commissioner take action against the Ministry of Interior Cooperative Housing Society because he himself was heading it.
On Wednesday, Justice Minallah, now an SC judge, inquired how a cooperative housing society could name itself after a ministry.
The petitioner’s lawyer maintained that there was also a Supreme Court housing society.
Justice Aminud Din Khan interjected that it was Supreme Court Employees Cooperative Housing Society.
Justice Minallah remarked that in his opinion, the Supreme Court’s name should not be used in a housing society.
Pointing out that the SC should not indulge in a private business, he asked the lawyer why was the ministry’s name used in the housing society.
The lawyer replied that if the court decided the matter, the housing society’s name could be changed.
Justice Masood noted that when the housing society’s name was not a matter of dispute in the IHC, how could the SC issue an order to change its name?
He added that since the matter had already been decided by the high court, how could the SC reopen it?
Following that, the apex court rejected the plea of the cooperative housing society challenging the IHC’s judgment on the encroached college land.
SC snubs housing society’s plea against IHC verdict
Justice Minallah questions linking name of project with ministryCorrespondent
March 09, 2023
The IHC had ruled against Ministry of Interior Employees Cooperative Housing Society encroaching a land allocated for a state-owned college.
The Supreme Court on Wednesday rejected a plea filed by the Ministry of Interior Employees Cooperative Housing Society against the decision pertaining to its encroachment of a government college.
The cooperative housing society had challenged a verdict by the Islamabad High Court against its encroachment of land allocated for a state-owned college.
However, a three-judge bench of the SC, led by Justice Sardar Tariq Masood, upheld the IHC’s judgment and dismissed the plea of the cooperative housing society.
During the proceedings, Justice Athar Minallah expressed his displeasure over linking the name of a housing society with a government department.
Back when he was the IHC CJ, Justice Minallah observed that titles of government ministries or divisions could not be used by private individuals to run housing societies.
In January last year, the Capital Development Authority gave cooperative housing societies using the names of ministries or government departments a period of three weeks to change their names or face strict action.
In December 2021, Justice Minallah remarked that every state institution was involved in the real estate business and the government departments were running housing societies in their names -- an act that was clearly a conflict of interests.
He added that how could the deputy commissioner take action against the Ministry of Interior Cooperative Housing Society because he himself was heading it.
On Wednesday, Justice Minallah, now an SC judge, inquired how a cooperative housing society could name itself after a ministry.
The petitioner’s lawyer maintained that there was also a Supreme Court housing society.
Justice Aminud Din Khan interjected that it was Supreme Court Employees Cooperative Housing Society.
Justice Minallah remarked that in his opinion, the Supreme Court’s name should not be used in a housing society.
Pointing out that the SC should not indulge in a private business, he asked the lawyer why was the ministry’s name used in the housing society.
The lawyer replied that if the court decided the matter, the housing society’s name could be changed.
Justice Masood noted that when the housing society’s name was not a matter of dispute in the IHC, how could the SC issue an order to change its name?
He added that since the matter had already been decided by the high court, how could the SC reopen it?
Following that, the apex court rejected the plea of the cooperative housing society challenging the IHC’s judgment on the encroached college land.
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Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail of the Supreme Court have released a detailed dissenting note calling for the reconsideration of the power of the Chief Justice to make unilateral decisions.
The dissenting note released on the same day when the Chief Justice of Pakistan (CJP) Umar Ata Bandial constituted a five-member bench to take up Pakistan Tehreek-e-Insaf (PTI) petition against the Election Commission of Pakistan’s (ECP) decision to postpone Punjab elections till October 8 has sparked a debate about the power of the "one-man show" enjoyed by the CJP.
In their note related to the court's March 1 verdict regarding the holding of elections in Punjab and Khyber Pakhtunkhwa, the judges called for a re-examination of the Supreme Court's dependence on the solitary decision of one person [CJP], saying that the top court could not function without the consensus of all its members.
The dissenting note suggests that the jurisdiction of the Supreme Court should not be exercised "frequently and incautiously" and that it should be exercised only in exceptional cases of public importance relating to the enforcement of fundamental rights.
The judges also expressed their reservations about how the court's original jurisdiction under Article 184(3) of the Constitution was invoked suo motu in the present matter and the constitution of the nine-member bench.
Article 184(3) of the Constitution outlines the Supreme Court's original jurisdiction. It enables it to assume jurisdiction in matters involving a question of "public importance" concerning the "enforcement of any of the fundamental rights" of Pakistan's citizens.
The judges noted that this jurisdiction should be exercised with circumspection and that it confers "enabling powers" on the court, which is not bound to exercise them even where the case brought before it involves a question of public importance with reference to the enforcement of any of the fundamental rights.
The two judges pointed out that the jurisdiction of the Supreme Court under Article 184(3) is concurrent with that of the high courts under Article 199. Suppose the jurisdiction of any of the high courts has already been invoked under Article 199, and the matter is pending adjudication. In that case, the two well-established principles should be considered before exercising its jurisdiction under Article 184(3) by the Supreme Court.
The first principle is that where two courts have concurrent jurisdiction and a petitioner elects to invoke the jurisdiction of one of the courts, then he is bound by his choice of forum and must pursue his remedy in that court. The second principle is that if one of the courts having such concurrent jurisdiction happens to be a superior court to which an appeal lies from the other court of concurrent jurisdiction, then the superior court should not normally entertain such a petition after a similar petition on the same facts has already been filed.
The judges expressed their reservations about how the Supreme Court's original jurisdiction was invoked in the present matter. They stated that the court's jurisdiction should be exercised sparingly and that it should not be used to satisfy the whims of one person. They also pointed out that the court's reputation could be damaged if its jurisdiction is exercised frequently and incautiously.
The dissenting note has sparked a debate about the power of the Chief Justice and the Supreme Court's reliance on the "one-man show" model. Some legal experts have suggested that the dissenting note is a sign of the growing dissatisfaction among judges with the power of the Chief Justice and how the court is run.
They argue that the Supreme Court needs to move towards a more democratic decision-making model, where all members' consensus is required before a decision is made. This would help to ensure that decisions are made more carefully and that the court's reputation is protected.
Others, however, have argued that the dissenting note is an attempt to undermine the authority of the Chief Justice.
Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail of the Supreme Court have released a detailed dissenting note calling for the reconsideration of the power of the Chief Justice to make unilateral decisions.
The dissenting note released on the same day when the Chief Justice of Pakistan (CJP) Umar Ata Bandial constituted a five-member bench to take up Pakistan Tehreek-e-Insaf (PTI) petition against the Election Commission of Pakistan’s (ECP) decision to postpone Punjab elections till October 8 has sparked a debate about the power of the "one-man show" enjoyed by the CJP.
In their note related to the court's March 1 verdict regarding the holding of elections in Punjab and Khyber Pakhtunkhwa, the judges called for a re-examination of the Supreme Court's dependence on the solitary decision of one person [CJP], saying that the top court could not function without the consensus of all its members.
The dissenting note suggests that the jurisdiction of the Supreme Court should not be exercised "frequently and incautiously" and that it should be exercised only in exceptional cases of public importance relating to the enforcement of fundamental rights.
The judges also expressed their reservations about how the court's original jurisdiction under Article 184(3) of the Constitution was invoked suo motu in the present matter and the constitution of the nine-member bench.
Article 184(3) of the Constitution outlines the Supreme Court's original jurisdiction. It enables it to assume jurisdiction in matters involving a question of "public importance" concerning the "enforcement of any of the fundamental rights" of Pakistan's citizens.
The judges noted that this jurisdiction should be exercised with circumspection and that it confers "enabling powers" on the court, which is not bound to exercise them even where the case brought before it involves a question of public importance with reference to the enforcement of any of the fundamental rights.
The two judges pointed out that the jurisdiction of the Supreme Court under Article 184(3) is concurrent with that of the high courts under Article 199. Suppose the jurisdiction of any of the high courts has already been invoked under Article 199, and the matter is pending adjudication. In that case, the two well-established principles should be considered before exercising its jurisdiction under Article 184(3) by the Supreme Court.
The first principle is that where two courts have concurrent jurisdiction and a petitioner elects to invoke the jurisdiction of one of the courts, then he is bound by his choice of forum and must pursue his remedy in that court. The second principle is that if one of the courts having such concurrent jurisdiction happens to be a superior court to which an appeal lies from the other court of concurrent jurisdiction, then the superior court should not normally entertain such a petition after a similar petition on the same facts has already been filed.
The judges expressed their reservations about how the Supreme Court's original jurisdiction was invoked in the present matter. They stated that the court's jurisdiction should be exercised sparingly and that it should not be used to satisfy the whims of one person. They also pointed out that the court's reputation could be damaged if its jurisdiction is exercised frequently and incautiously.
The dissenting note has sparked a debate about the power of the Chief Justice and the Supreme Court's reliance on the "one-man show" model. Some legal experts have suggested that the dissenting note is a sign of the growing dissatisfaction among judges with the power of the Chief Justice and how the court is run.
They argue that the Supreme Court needs to move towards a more democratic decision-making model, where all members' consensus is required before a decision is made. This would help to ensure that decisions are made more carefully and that the court's reputation is protected.
Others, however, have argued that the dissenting note is an attempt to undermine the authority of the Chief Justice.
ghazi52
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Khalid Mehmood/Hasnaat Maik
March 28, 2023
The federal government tabled a legislative bill in the Natonal Assembly on Tuesday seeking to curtail the discretionary powers of the Chief Justice of Pakistan, leaving the decision of taking up any suo motu case to the three senior-most judges of the apex court.
Federal Law Minister Azam Nazeer Tarar presented 'The Supreme Court (Practice and Procedure) Act, 2023', which was approved by the federal cabinet earlier in the evening. NA Speaker Raja Pervez Ashraf subsequently referred the tabled bill to the NA's Standing Committee on Law and Justice for its approval.
Sources told The Express Tribune that a meeting of the standing committee has been summoned for Wednesday (tomorrow) at 10pm to take up the matter. The committee is expected to swiftly approve the judicial reforms bill, after which the it will be sent back to Parliament.
Seeking to curtail the discretionary powers of the chief justice, the judicial reforms bill states that "every cause, appeal or matter before the Supreme Court shall be heard and disposed of by a bench constituted by the Committee comprising the Chief Justice of Pakistan and two senior most judges, in order of seniority,"
The decisions of such a committee shall be by majority, it adds.
Regarding suo moto powers, the bill seeks to ensure that any matter invoking exercise of original jurisdiction under Article 184 (3) shall be first placed before the committee of three senior-most judges.
“..If the Committee is of the view that a question of public importance with reference to enforcement of any of the fundamental rights conferred by Chapter I of Part II of the Constitution is involved, it shall constitute a bench comprising not less than three judges of the Supreme Court of Pakistan which may also include the members of the Committee, for adjudication of the matter,” it adds.
The legislation also allows appeals within 30 days of a verdict being issued on a suo motu case and enforces that a bench be constituted to hear such an appeal within 14 days.
“An appeal shall lie within thirty days from a final order of a bench of the Supreme Court who exercised jurisdiction under clause (3) of Article 184 of the Constitution to a larger bench of the Supreme Court and such appeal shall, for hearing, be fixed within a period not exceeding fourteen days,” read the draft.
The development comes amid a growing debate in the country over the discretionary powers of the Chief Justice of Pakistan to constitute benches, 'fix' cases, and initiate public interest proceedings under Article 184 (3) of the Constitution.
Earlier in the day, Prime Minister Shehbaz Sharif urged the National Assembly to legislate on reducing the powers of the Chief Justice of Pakistan, stating that the voices from within the judiciary were a 'new ray of hope'. The premier said that history would not forgive the National Assembly if it did not pass the legislation.
Addressing the NA session, the prime minister read out a dissenting order issued by Supreme Court judges Justice Jamal Khan Mandokhail and Justice Mansoor Ali Shah on a suo motu case over the delay of elections to the Punjab and Khyber-Pakhtunkhwa assemblies.
On Monday, the two dissenting judges of the apex court had issued a 27-page order, stating that the suo motu case regarding the Punjab and K-P elections date announcement had been dismissed by a majority of four judges out of seven.
The 27-page 'order of the court' by the two dissenting judges was in stark contrast to the Supreme Court's earlier order which had ruled in a 3-2 verdict that polls in K-P and Punjab be held within 90 days.
In the order, the judges also called for "revisiting the power of the one-man show enjoyed by the office of the Chief Justice of Pakistan” in order to “strengthen” the institution and “ensure public trust and confidence” in the apex court.
Govt tables bill in NA to limit CJP’s suo motu powers
The bill states that a committee of three senior-most SC judges will decide on taking up any suo motu caseKhalid Mehmood/Hasnaat Maik
March 28, 2023
The federal government tabled a legislative bill in the Natonal Assembly on Tuesday seeking to curtail the discretionary powers of the Chief Justice of Pakistan, leaving the decision of taking up any suo motu case to the three senior-most judges of the apex court.
Federal Law Minister Azam Nazeer Tarar presented 'The Supreme Court (Practice and Procedure) Act, 2023', which was approved by the federal cabinet earlier in the evening. NA Speaker Raja Pervez Ashraf subsequently referred the tabled bill to the NA's Standing Committee on Law and Justice for its approval.
Sources told The Express Tribune that a meeting of the standing committee has been summoned for Wednesday (tomorrow) at 10pm to take up the matter. The committee is expected to swiftly approve the judicial reforms bill, after which the it will be sent back to Parliament.
Seeking to curtail the discretionary powers of the chief justice, the judicial reforms bill states that "every cause, appeal or matter before the Supreme Court shall be heard and disposed of by a bench constituted by the Committee comprising the Chief Justice of Pakistan and two senior most judges, in order of seniority,"
The decisions of such a committee shall be by majority, it adds.
Regarding suo moto powers, the bill seeks to ensure that any matter invoking exercise of original jurisdiction under Article 184 (3) shall be first placed before the committee of three senior-most judges.
“..If the Committee is of the view that a question of public importance with reference to enforcement of any of the fundamental rights conferred by Chapter I of Part II of the Constitution is involved, it shall constitute a bench comprising not less than three judges of the Supreme Court of Pakistan which may also include the members of the Committee, for adjudication of the matter,” it adds.
The legislation also allows appeals within 30 days of a verdict being issued on a suo motu case and enforces that a bench be constituted to hear such an appeal within 14 days.
“An appeal shall lie within thirty days from a final order of a bench of the Supreme Court who exercised jurisdiction under clause (3) of Article 184 of the Constitution to a larger bench of the Supreme Court and such appeal shall, for hearing, be fixed within a period not exceeding fourteen days,” read the draft.
The development comes amid a growing debate in the country over the discretionary powers of the Chief Justice of Pakistan to constitute benches, 'fix' cases, and initiate public interest proceedings under Article 184 (3) of the Constitution.
Earlier in the day, Prime Minister Shehbaz Sharif urged the National Assembly to legislate on reducing the powers of the Chief Justice of Pakistan, stating that the voices from within the judiciary were a 'new ray of hope'. The premier said that history would not forgive the National Assembly if it did not pass the legislation.
Addressing the NA session, the prime minister read out a dissenting order issued by Supreme Court judges Justice Jamal Khan Mandokhail and Justice Mansoor Ali Shah on a suo motu case over the delay of elections to the Punjab and Khyber-Pakhtunkhwa assemblies.
On Monday, the two dissenting judges of the apex court had issued a 27-page order, stating that the suo motu case regarding the Punjab and K-P elections date announcement had been dismissed by a majority of four judges out of seven.
The 27-page 'order of the court' by the two dissenting judges was in stark contrast to the Supreme Court's earlier order which had ruled in a 3-2 verdict that polls in K-P and Punjab be held within 90 days.
In the order, the judges also called for "revisiting the power of the one-man show enjoyed by the office of the Chief Justice of Pakistan” in order to “strengthen” the institution and “ensure public trust and confidence” in the apex court.
ghazi52
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March 30, 2023
Justice Shahid Waheed of the Supreme Court observed on Thursday that judges could not raise objections regarding the constitution of benches, saying that if they do so they would become a complainant and it would no longer be appropriate for them to hear the case.
He made the remarks in a dissenting note for a suo motu case pertaining to pertaining to the 2018 regulation of the Pakistan Medical and Dental Council (PMDC) that suggested an award of 20 additional marks to candidates for memorising the Holy Quran by heart to get MBBS or BDS degrees.
Justice Waheed was part of the three-judge special bench that heard the case. A day earlier, the other two members of the bench, Justice Qazi Faez Isa and Justice Aminuddin Khan, held that the Constitution did not grant unilateral and arbitrary power to the chief justice of Pakistan (CJP) to list cases for hearing, form special benches and select judges.
“With respect, the chief justice cannot substitute his personal wisdom with that of the Constitution,” Justice Isa said in his remarks, part of a 12-page judgement he authored.
He proposed that cases under Article 184(3) of the Constitution be postponed until amendments were made to Supreme Court Rules 1980 regarding the CJP’s discretionary powers to form benches.
However, Justice Waheed had disagreed with the judgement.
In a separate five-page dissenting note, a copy of which is available with Dawn.com, Justice Waheed said that the case at hand merited the bench to pass a “regulatory order”.
He noted that the attorney general had asked for an adjournment in order to file a concise statement, while the PMDC had told the court that the regulation in question had been withdrawn and asked for time to bring it on record.
“So, in my view, the requests for adjournment alone were to be considered by the bench, and our order ought to have been confined to it. This means a regulatory order was to be passed. On the contrary, I find that the said requests have been left unattended but certain other points have been discussed in the order which has led me to record this dissenting note,” he said.
Justice Waheed said the first point to be examined was whether the “objection to the constitution of this bench could be brought under consideration in this case”.
“I think it cannot for two reasons. One, a bench, special or regular, is constituted by an administrative order of the hon’ble chief justice, and as such, the present bench […] has been lawfully constituted to hear this case.
“It is to be noted that judgment in the suo motu case no.4 of 2021 is of a five-member bench and thus, takes precedence over all precedents of this court regarding the power of the Hon’ble chief justice to constitute any kind of benches.”
He noted that neither the attorney general nor the PMDC’s counsel had any objections regarding the constitution of the bench hearing the case.
“Given these circumstances, in my humble view, none of the judges of this bench can object to the constitution of the bench, and if they do so, their status immediately becomes that of the complainant, and consequently, it would not be appropriate for them to hear this case and pass any kind of order thereon.
“This reasoning has the backing of the basic code of judicial ethics, to wit, no man can be a judge in their own cause. It is important to state here that this principle confines not merely to the cause where the judge is an actual party to a case, but also applies to a case in which he has an interest.”
He argued that judicial propriety stated that if any judge of the bench had any objection, they would either recuse themselves of refer the matter to the CJP so that the case could be assigned to another bench.
Justice Waheed also said that the “administrative order of the hon’ble chief justice regarding the constitution of the bench becomes fait accompli when a judge in compliance thereof starts hearing the case”.
“Hence, any member of this bench, after having accepted the administrative order of the hon’ble chief justice, is estopped to question the constitution of the bench on the well known doctrine of estoppel (the principle which precludes a person from asserting something contrary to what is implied by a previous action or statement or by a previous pertinent judicial order)”.
The judge also addressed the Pakistan Electronic Media Regulatory Authority’s (Pemra) prohibition on the broadcasting and rebroadcasting of content pertaining to the conduct of sitting high court and Supreme Court judges on electronic media, which was criticised by the other two members of the bench.
He stated that the question was not “agitated” by any lawyer but brought under discussion by a senior member of the bench while copies of the prohibition order were also presented to the rest of the bench, the attorney general and the PMDC’s counsel by the judge’s clerk.
“Although much can be said on this question, it suffices to say that it would be otiose to discuss it here as it was neither urged by any counsel nor was it raised in the pleadings. In fact, no party was on notice to address on this question.
“Pemra was also not in attendance to present the rationale of the prohibition order. Therefore, in my view, the principle of fairness obliges us not to express a definite opinion on this question until all concerned have had an opportunity of being heard.”
The judge further said that another reason why he did not endorse the observations of the other two members of the bench was because “I hold the view that no court should try any question and also pass order thereon which is not directly and substantially in issue in a case pending before it”.
“In the case at hand, the matter in issue is whether the memorisation of the Holy Quran is a relevant criteria for the determination of the candidates for an MBBS or BDS degree. Indubitably, the above-stated second question is not related to the issue involved in this case, and thus, it cannot be brought under debate, nor can any conclusion be drawn thereon.”
He said that the appropriate order would be to allow the attorney general and the PMDC to file their respective concise statement before the next hearing.
The two had made the remarks in a detailed dissenting note — released on Monday hours after the apex court took up the PTI’s plea challenging the postponement of elections in Punjab — for the top court’s March 1 verdict regarding holding elections in Punjab and Khyber Pakhtunkhwa, where the two provincial assemblies have been dissolved.
The two judges said the suo motu proceedings regarding the provincial elections stood dismissed by a majority of 4-3 and contended that the CJP did not have the power to restructure benches without the consent of the respective judges.
Prime Minister Shehbaz Sharif had hailed the dissenting note as a “ray of hope” during his National Assembly speech and called for relevant legislation in its wake.
On Wednesday, the National Assembly passed the Supreme Court (Practice and Procedure), Bill 2023, which aims to deprive the CJP office of powers to take suo motu notice in an individual capacity. Earlier today, the bill was passed by the Senate amid a protest by opposition.
The bill states that every cause, matter or appeal before the apex court would be heard and disposed of by a bench constituted by a committee comprising the CJP and the two senior-most judges. It added that the decisions of the committee would be taken by a majority.
Regarding exercising the apex court’s original jurisdiction, the bill said that any matter invoking the use of Article 184(3) would first be placed before the abovementioned committee.
“If the committee is of the view that a question of public importance with reference to enforcement of any of the fundamental rights conferred by Chapter I of Part II of the Constitution is involved, it shall constitute a bench comprising not less than three judges of the Supreme Court of Pakistan which may also include the members of the committee, for adjudication of the matter,” the bill reads.
On matters where the interpretation of the Constitution is required, the bill said the abovementioned committee would compose a bench comprising no less than five apex court judges for the task.
Regarding appeals for any verdict by an apex court bench which exercised Article 184(3)‘s jurisdiction, the bill said that the appeal will lie within 30 days of the bench’s order to a larger Supreme Court bench. It added that the appeal would be fixed for hearing within a period not exceeding 14 days.
It added that this right of appeal would also extend retroactively to those aggrieved persons against whom an order was made under Article 184(3) prior to the commencement of the Supreme Court (Practice and Procedure), Bill 2023, on the condition that the appeal was filed within 30 days of the act’s commencement.
The bill additionally said that a party would have the right to appoint its counsel of choice for filing a review application under Article 188 of the Constitution.
Furthermore, “an application pleading urgency or seeking interim relief, filed in a cause, appeal or matter, shall be fixed for hearing within 14 days from the date of its filing”.
The bill said that its provisions would have effect notwithstanding anything contained in any other law, rules or regulations for the time being in force or judgement of any court, including the Supreme Court and high courts.
Judges cannot raise objections regarding constitution of benches: Justice Shahid Waheed
Haseeb BhattiMarch 30, 2023
Justice Shahid Waheed of the Supreme Court observed on Thursday that judges could not raise objections regarding the constitution of benches, saying that if they do so they would become a complainant and it would no longer be appropriate for them to hear the case.
He made the remarks in a dissenting note for a suo motu case pertaining to pertaining to the 2018 regulation of the Pakistan Medical and Dental Council (PMDC) that suggested an award of 20 additional marks to candidates for memorising the Holy Quran by heart to get MBBS or BDS degrees.
Justice Waheed was part of the three-judge special bench that heard the case. A day earlier, the other two members of the bench, Justice Qazi Faez Isa and Justice Aminuddin Khan, held that the Constitution did not grant unilateral and arbitrary power to the chief justice of Pakistan (CJP) to list cases for hearing, form special benches and select judges.
“With respect, the chief justice cannot substitute his personal wisdom with that of the Constitution,” Justice Isa said in his remarks, part of a 12-page judgement he authored.
He proposed that cases under Article 184(3) of the Constitution be postponed until amendments were made to Supreme Court Rules 1980 regarding the CJP’s discretionary powers to form benches.
However, Justice Waheed had disagreed with the judgement.
In a separate five-page dissenting note, a copy of which is available with Dawn.com, Justice Waheed said that the case at hand merited the bench to pass a “regulatory order”.
He noted that the attorney general had asked for an adjournment in order to file a concise statement, while the PMDC had told the court that the regulation in question had been withdrawn and asked for time to bring it on record.
“So, in my view, the requests for adjournment alone were to be considered by the bench, and our order ought to have been confined to it. This means a regulatory order was to be passed. On the contrary, I find that the said requests have been left unattended but certain other points have been discussed in the order which has led me to record this dissenting note,” he said.
Justice Waheed said the first point to be examined was whether the “objection to the constitution of this bench could be brought under consideration in this case”.
“I think it cannot for two reasons. One, a bench, special or regular, is constituted by an administrative order of the hon’ble chief justice, and as such, the present bench […] has been lawfully constituted to hear this case.
“It is to be noted that judgment in the suo motu case no.4 of 2021 is of a five-member bench and thus, takes precedence over all precedents of this court regarding the power of the Hon’ble chief justice to constitute any kind of benches.”
He noted that neither the attorney general nor the PMDC’s counsel had any objections regarding the constitution of the bench hearing the case.
“Given these circumstances, in my humble view, none of the judges of this bench can object to the constitution of the bench, and if they do so, their status immediately becomes that of the complainant, and consequently, it would not be appropriate for them to hear this case and pass any kind of order thereon.
“This reasoning has the backing of the basic code of judicial ethics, to wit, no man can be a judge in their own cause. It is important to state here that this principle confines not merely to the cause where the judge is an actual party to a case, but also applies to a case in which he has an interest.”
He argued that judicial propriety stated that if any judge of the bench had any objection, they would either recuse themselves of refer the matter to the CJP so that the case could be assigned to another bench.
Justice Waheed also said that the “administrative order of the hon’ble chief justice regarding the constitution of the bench becomes fait accompli when a judge in compliance thereof starts hearing the case”.
“Hence, any member of this bench, after having accepted the administrative order of the hon’ble chief justice, is estopped to question the constitution of the bench on the well known doctrine of estoppel (the principle which precludes a person from asserting something contrary to what is implied by a previous action or statement or by a previous pertinent judicial order)”.
The judge also addressed the Pakistan Electronic Media Regulatory Authority’s (Pemra) prohibition on the broadcasting and rebroadcasting of content pertaining to the conduct of sitting high court and Supreme Court judges on electronic media, which was criticised by the other two members of the bench.
He stated that the question was not “agitated” by any lawyer but brought under discussion by a senior member of the bench while copies of the prohibition order were also presented to the rest of the bench, the attorney general and the PMDC’s counsel by the judge’s clerk.
“Although much can be said on this question, it suffices to say that it would be otiose to discuss it here as it was neither urged by any counsel nor was it raised in the pleadings. In fact, no party was on notice to address on this question.
“Pemra was also not in attendance to present the rationale of the prohibition order. Therefore, in my view, the principle of fairness obliges us not to express a definite opinion on this question until all concerned have had an opportunity of being heard.”
The judge further said that another reason why he did not endorse the observations of the other two members of the bench was because “I hold the view that no court should try any question and also pass order thereon which is not directly and substantially in issue in a case pending before it”.
“In the case at hand, the matter in issue is whether the memorisation of the Holy Quran is a relevant criteria for the determination of the candidates for an MBBS or BDS degree. Indubitably, the above-stated second question is not related to the issue involved in this case, and thus, it cannot be brought under debate, nor can any conclusion be drawn thereon.”
He said that the appropriate order would be to allow the attorney general and the PMDC to file their respective concise statement before the next hearing.
Growing debate over CJP’s powers
The dissenting note comes days after Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail of the Supreme Court called for revisiting the power of the “one-man show” enjoyed by the CJP, saying that the country’s top court could not “be dependent on the solitary decision of one man”.The two had made the remarks in a detailed dissenting note — released on Monday hours after the apex court took up the PTI’s plea challenging the postponement of elections in Punjab — for the top court’s March 1 verdict regarding holding elections in Punjab and Khyber Pakhtunkhwa, where the two provincial assemblies have been dissolved.
The two judges said the suo motu proceedings regarding the provincial elections stood dismissed by a majority of 4-3 and contended that the CJP did not have the power to restructure benches without the consent of the respective judges.
Prime Minister Shehbaz Sharif had hailed the dissenting note as a “ray of hope” during his National Assembly speech and called for relevant legislation in its wake.
On Wednesday, the National Assembly passed the Supreme Court (Practice and Procedure), Bill 2023, which aims to deprive the CJP office of powers to take suo motu notice in an individual capacity. Earlier today, the bill was passed by the Senate amid a protest by opposition.
The bill states that every cause, matter or appeal before the apex court would be heard and disposed of by a bench constituted by a committee comprising the CJP and the two senior-most judges. It added that the decisions of the committee would be taken by a majority.
Regarding exercising the apex court’s original jurisdiction, the bill said that any matter invoking the use of Article 184(3) would first be placed before the abovementioned committee.
“If the committee is of the view that a question of public importance with reference to enforcement of any of the fundamental rights conferred by Chapter I of Part II of the Constitution is involved, it shall constitute a bench comprising not less than three judges of the Supreme Court of Pakistan which may also include the members of the committee, for adjudication of the matter,” the bill reads.
On matters where the interpretation of the Constitution is required, the bill said the abovementioned committee would compose a bench comprising no less than five apex court judges for the task.
Regarding appeals for any verdict by an apex court bench which exercised Article 184(3)‘s jurisdiction, the bill said that the appeal will lie within 30 days of the bench’s order to a larger Supreme Court bench. It added that the appeal would be fixed for hearing within a period not exceeding 14 days.
It added that this right of appeal would also extend retroactively to those aggrieved persons against whom an order was made under Article 184(3) prior to the commencement of the Supreme Court (Practice and Procedure), Bill 2023, on the condition that the appeal was filed within 30 days of the act’s commencement.
The bill additionally said that a party would have the right to appoint its counsel of choice for filing a review application under Article 188 of the Constitution.
Furthermore, “an application pleading urgency or seeking interim relief, filed in a cause, appeal or matter, shall be fixed for hearing within 14 days from the date of its filing”.
The bill said that its provisions would have effect notwithstanding anything contained in any other law, rules or regulations for the time being in force or judgement of any court, including the Supreme Court and high courts.
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April 3, 2023
Justice Qazi Faez Isa of the Supreme Court said on Monday that the Chief Justice of Pakistan (CJP) Umar Ata Bandial has no power to issue administrative directions on a judicial order passed by fellow judges of the apex court, Aaj News reported.
In a letter addressed to the Supreme Court’s Registrar, Justice Faez Isa said that the circular issued on March 31 by his office was against the top court’s three-member bench led by him.
“Needless to say, as a senior officer you are expected to know what the Constitution of Pakistan stipulates, act in accordance therewith and abide by the decisions of the Supreme Court (article 189 of the Constitution.),” the letter read.
Justice Isa, the seniormost judge of the SC after the Chief Justice, noted that the SC Registrar was unfit to hold the office, and advised him to relinquish the post immediately.
“Your conduct demonstrates that you do not have requisite competence, ability and understanding to hold the office of the Registrar. Moreover, a bureaucrat holding the office of the Registrar violates article 175(3) of the Constitution, which mandates the complete separation of the Judiciary from the Executive. […] Therefore, you are advised to relinquish the office of the Registrar immediately.”
The development comes days after CJP Bandial turned down a judgement issued by Justice Qazi Faez Isa and Justice Aminuddin Khan in which they called for the delay of suo motu matters until amendments were made to Supreme Court Rules 1980.
The two judges, while hearing a petition about granting 20 marks to Hafiz students, ruled that the Constitution did not grant unilateral and arbitrary power to the chief justice of Pakistan (CJP) to list cases for hearing, form special benches and select judges.
“With respect, the chief justice cannot substitute his personal wisdom with that of the Constitution,” Justice Isa had said.
In his circular issued on Friday, CJP Bandial noted that the observations made by the majority judgment in paras 11 to 22 and 26 to 28 were beyond the matter fixed before the court and “invokes its suo motu jurisdiction”.
The circular noted that the “unilateral assumption of judicial power” in such a manner violated the rule laid down by a five-member judgment.
“Such power is to be invoked by the Chief Justice on the recommendation of an Honourable Judge or a learned Bench of the Court on the basis of criteria laid down in Article 184(3) of the Constitution. The said majority judgment therefore disregards binding law laid down by a larger bench of the Court,” read the circular.
“Any observations made in the said judgment, inter alia, for the fixation or otherwise of cases is to be disregarded. Accordingly, a circular be issued by the Registrar stating the foregoing legal position for the information of all concerned,” concluded the circular.
The government, on the other hand, tried to use this judgment of Justice Faez Isa in its favour and requested the Supreme Court to adjourn the hearing till the rules of 184/3 are finalised.
However, the CJP clarified that no decision had been withdrawn on the basis of the circular.
Meanwhile, Justice Ijazul Ahsan asked how they could adjourn the hearing when the rules were clear about constitutional petitions.
CJP cannot overrule judicial order of fellow judges: Justice Faez Isa
BR Web DeskApril 3, 2023
Justice Qazi Faez Isa of the Supreme Court said on Monday that the Chief Justice of Pakistan (CJP) Umar Ata Bandial has no power to issue administrative directions on a judicial order passed by fellow judges of the apex court, Aaj News reported.
In a letter addressed to the Supreme Court’s Registrar, Justice Faez Isa said that the circular issued on March 31 by his office was against the top court’s three-member bench led by him.
“Needless to say, as a senior officer you are expected to know what the Constitution of Pakistan stipulates, act in accordance therewith and abide by the decisions of the Supreme Court (article 189 of the Constitution.),” the letter read.
Justice Isa, the seniormost judge of the SC after the Chief Justice, noted that the SC Registrar was unfit to hold the office, and advised him to relinquish the post immediately.
“Your conduct demonstrates that you do not have requisite competence, ability and understanding to hold the office of the Registrar. Moreover, a bureaucrat holding the office of the Registrar violates article 175(3) of the Constitution, which mandates the complete separation of the Judiciary from the Executive. […] Therefore, you are advised to relinquish the office of the Registrar immediately.”
The development comes days after CJP Bandial turned down a judgement issued by Justice Qazi Faez Isa and Justice Aminuddin Khan in which they called for the delay of suo motu matters until amendments were made to Supreme Court Rules 1980.
The two judges, while hearing a petition about granting 20 marks to Hafiz students, ruled that the Constitution did not grant unilateral and arbitrary power to the chief justice of Pakistan (CJP) to list cases for hearing, form special benches and select judges.
“With respect, the chief justice cannot substitute his personal wisdom with that of the Constitution,” Justice Isa had said.
In his circular issued on Friday, CJP Bandial noted that the observations made by the majority judgment in paras 11 to 22 and 26 to 28 were beyond the matter fixed before the court and “invokes its suo motu jurisdiction”.
The circular noted that the “unilateral assumption of judicial power” in such a manner violated the rule laid down by a five-member judgment.
“Such power is to be invoked by the Chief Justice on the recommendation of an Honourable Judge or a learned Bench of the Court on the basis of criteria laid down in Article 184(3) of the Constitution. The said majority judgment therefore disregards binding law laid down by a larger bench of the Court,” read the circular.
“Any observations made in the said judgment, inter alia, for the fixation or otherwise of cases is to be disregarded. Accordingly, a circular be issued by the Registrar stating the foregoing legal position for the information of all concerned,” concluded the circular.
The government, on the other hand, tried to use this judgment of Justice Faez Isa in its favour and requested the Supreme Court to adjourn the hearing till the rules of 184/3 are finalised.
However, the CJP clarified that no decision had been withdrawn on the basis of the circular.
Meanwhile, Justice Ijazul Ahsan asked how they could adjourn the hearing when the rules were clear about constitutional petitions.
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