First-ever suo motu notice during 11-month incumbency of CJP Khosa

ISLAMABAD: During his 11-month term as the top judge of Pakistan, Chief Justice Asif Saeed Khosa has taken the first-ever suo motu notice relating to the reappointment of General Qamar Javed Bajwa as the Chief of Army Staff, which has been suspended by the Supreme Court till Wednesday.

On March 21 this year, the Chief Justice had taken notice of the suicide committed by retired brigadier Asad Munir, but it was never heard in open court. He had sought details of investigations against Munir by the National Accountability Bureau (NAB). Nothing is known what happened later.

This is the first time that Justice Khosa, who was sworn in as the topmost judge on Jan 20 this year, has exercised powers under Article 184(3) [suo motu authority] just 24 days before his retirement. The provision says the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the fundamental rights is involved, have the power to make an order.

The order issued by the three-member bench headed by Justice Khosa said that the court-associate has produced before it a handwritten application statedly submitted by the petitioner [Riaz Hanif Rahi, advocate] seeking permission to withdraw this petition. The petitioner has failed to appear in person and not anybody else appeared on his behalf. The application received does not carry any date and the same is not accompanied by any affidavit.

It said there is nothing before the bench to accept or to presume that this application has actually been submitted by the petitioner himself or that he has submitted the same voluntarily. “Be that as it may the petition in hand invokes Article 184 (3) of the Constitution and the subject matter of the petition involves a question of public importance with reference to enforcement of fundamental rights and, thus, the individual capacity of the petitioner pales into insignificance even if he decides not to pursue the present petition. The application attributed to the petitioner is, therefore, not entertained.”

During Justice Khosa’s incumbency, there were a number of vociferous public calls to take suo motu notice of various grave incidents that caused immense nationwide uproar but he resisted. He was also repeatedly requested to intervene when the Sahiwal massacre took place.

Two days ago, the Chief Justice, while addressing a function on police reforms, said that the Supreme Court did not need to jump in by taking suo motu notice at the premature stage of a case, particularly when it is the court of last resort. He said if the apex court interfered in a case on day one, the whole process of justice would be retarded and added that he handled some cases in which the court had taken suo motu notice years ago, followed by certain directions but later it transpired at the stage of appeal that the facts of the case were entirely different. “But our hands were tied because a judgment had already been rendered right after the incident by the Supreme Court. Such premature interventions are ill-advised. So as far as I am concerned I have exercised restraint.”

A day before taking oath as the top judge, Justice Khosa had stated that the power to take suo motu notices will be used sparingly, and only in respect of larger issues of national importance where either there is no other adequate or efficacious remedy available or the available constitutional or legal remedies are ineffective or are rendered incapacitated. “Lawyers are not given a chance to present facts and arguments. The huge amount of suo motu cases leads to a delay in the proceedings of other petitions.”

He said that he had been working alongside outgoing Chief Justice Saqib Nisar for 20 years but will now have to part ways as per the law.

Apart from Justice Khosa’s restraint to take suo motu notices, the lawyers community as a whole has been strongly opposed to it on the ground that the affected parties are deprived of the right of appeal as such decisions come from the highest court and attain finality.