A special bench of the Supreme Court, with a 2-1 majority, on Wednesday ordered the suspension of all pending suo motu cases—taken up for hearing under Article 184(3) of the Constitution—until the Supreme Court Rules have been revised to provide a mechanism for the chief justice’s discretionary powers.
Led by Justice Qazi Faez Isa, the bench comprising Justices Aminud Din Khan and Shahid Waheed was hearing a suo motu case related to the granting of 20 additional marks to Hafiz-e-Quran students for admission to MBBS/BDS programs. Both Justice Isa and Justice Khan directed the suspension of suo motu cases, while Justice Waheed wrote a dissenting note, stating the “points raised and discussed in the order were not subject to the case.”
“The Supreme Court Rules, 1980 (the Rules) neither permit nor envisage special benches,” reads the ruling authored by Justice Isa. “However, a Special Bench comprising of three judges was constituted to hear this case,” it said, noting that there were three categories of cases under Article 184(3) of the Constitution. The first, it said, was when a formal application seeking enforcement of fundamental rights was filed; the second when a suo motu notice was taken by the Supreme Court or its judges; and the third when cases of immense constitutional importance and significance arise, which may also fall into either of the other two categories.
“Order XXV of the Rules only attends to the first category of cases,” reads the order. “There is no procedure prescribed for the second and third category of cases. The situation is exacerbated as there is no appeal against a decision under Article 184(3) of the Constitution,” it said, noting that the Rules did not provide any mechanism for how cases should be listed for hearing; how benches are constituted; or how judges are selected to hear particular cases.
Stressing that the Supreme Court comprises the CJP and all sitting judges, it said that the Constitution did not grant the CJP any “unilateral and arbitrary power” to constitute benches or list cases for hearing. “With respect, the Chief Justice cannot substitute his personal wisdom with that of the Constitution,” it said, adding that collective determination by the CJP and judges of the Supreme Court could also not be assumed by any individual.
“The interest of citizens therefore will be best served to postpone the hearing of this case, and of all other cases under Article 184(3) of the Constitution, till the matters noted hereinabove are first attended to by making requisite rules in terms of Article 191 of the Constitution,” it added.
PEMRA orders
The 12-page order also took exception to a recent order issued by the Pakistan Electronic Media Regulatory Authority (PEMRA) that had barred satellite TV channels from discussing the conduct of judges of the High Courts and the Supreme Court. Noting that the “judiciary would be flawed if it is not open to constructive criticism,” it stated that the order had relied on a constitutional provision that did not apply to media. “The prohibition order disregards and violates the fundamental rights of freedom of speech, expression and of the media,” it said, adding that the Constitution stipulates that all existing laws must conform with the injunctions of Islam and Islamic tradition records that judges were criticized.