Special bench orders putting off all Supreme Court suo motu cases

ISLAMABAD: A Supreme Court special bench — with two to one majority — Wednesday ordered putting off all ongoing suo motu cases under Article 184(3) of the Constitution until the amendments are made to the top court's rules which oversee the chief justice's powers.

The special bench order came on the suo motu case related to examining the grant of 20 additional marks to a Hafiz-e-Quran student while admitting them for an MBBS/BDS degree. Justice Qazi Faez Isa led the bench, which comprised Justice Amin-ud-Din Khan and Justice Shahid Waheed.

Chief Justice of Pakistan (CJP) Umar Ata Bandial had formed the three-member special bench to hear the case, but Justice Isa objected to the constitution of the bench.

Justice Waheed — who also wrote a dissenting note against the order — raised objections and said that "the points raised and discussed in the order were not subject to the case".

The order, penned by Justice Isa, mentioned: "The Supreme Court Rules, 1980 (the Rules) neither permit nor envisage special benches. However, a Special Bench comprising of three Judges’ was constituted to hear this case."

Regarding Article 184(3) of the Constitution, the order said there are three categories of cases.

• When a formal application seeking enforcement of fundamental rights is filed;
• When suo motu notice is taken by the Supreme Court or its judges; and
• Cases of immense constitutional importance and significance (which may also be those in the first and second category).

"Order XXV of the Rules only attends to the first category of cases. 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," the order mentioned.

The order said rules also do not provide how to attend to the following matters:

• How such cases be listed for hearing;
• How bench/benches to hear such cases be constituted; and
• How judges hearing them are selected.
• The majority order further said the Supreme Court comprises the CJP and all judges.

"The Constitution does not grant the Chief Justice unilateral and arbitrary power to decide the above matters. With respect, the Chief Justice cannot substitute his personal wisdom with that of the Constitution," the order stated.

Collective determination by the chief justice and the judges of the Supreme Court can also not be assumed by an individual, albeit the chief justice, the order said.

"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."

Meanwhile, in a bid to bolster checks and balances in the higher judiciary, the National Assembly passed the Supreme Court (Practice and Procedure) Bill, 2023, tabled to limit Pakistan's top judge's discretionary powers to take suo motu notice.

The bill was passed hours after National Assembly Standing Committee on Law and Justice gave its consent.

The bill was moved by the government after two Supreme Court judges — Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail — raised questions over the powers of the CJP, saying the apex court “cannot be dependent on the solitary decision of one man, the Chief Justice”.