Justices Isa and Aminuddin Assert CJP Cannot Constitute Special Benches

Islamabad: A Supreme Court special bench, with a majority of two to one, issued an order to suspend all suo motu cases, which are filed under Article 184(3) of the Constitution, until the Supreme Court Rules governing the chief justice's discretionary powers are amended.

The decision was made in response to a suo motu case related to the award of 20 additional marks to a Hafiz-e-Quran student while admitting them to an MBBS/BDS degree.

The bench was led by Justice Qazi Faez Isa and included Justice Amin-ud-Din Khan and Justice Shahid Waheed. The Chief Justice of Pakistan, Umar Ata Bandial, had formed the three-member bench to hear the case, but Justice Isa opposed the bench's constitution.

Justice Waheed had expressed dissent and objected to the order, stating that the issues discussed were not pertinent to the case at hand. The order was authored by Justice Isa, who pointed out that the Supreme Court Rules of 1980 did not authorize or anticipate the creation of special benches, but one had been constituted with three judges to hear this particular case.

The order also addressed Article 184(3) of the Constitution and its three distinct categories of cases: The enforcement of fundamental rights can be sought through a formal application filed in court. In addition, the Supreme Court or its judges may take suo motu notice, and cases of great constitutional importance and significance may also fall into this category, which could include those in the first and second categories.

According to the order, Order XXV of the Rules only covers the first category of cases and does not provide any procedure for the second and third categories of cases. Additionally, there is no provision for an appeal against a decision under Article 184(3) of the Constitution.

The order noted that the rules do not address how cases in the second and third categories are to be listed for hearing, how the bench or benches to hear such cases should be constituted, or how judges hearing them should be selected. The majority order stated that the Supreme Court consists of the Chief Justice and all judges and that the Constitution does not grant the Chief Justice unilateral and arbitrary power to decide on such matters.

The order emphasized that the Chief Justice cannot substitute his personal wisdom with that of the Constitution, and collective determination by the Chief Justice and the judges of the Supreme Court cannot be assumed by an individual, even if that individual is the Chief Justice.

As a result, the order suggested that it would be in the best interest of citizens to postpone the hearing of this case, as well as all other cases under Article 184(3) of the Constitution, until the matters noted above are addressed by making the necessary rules in accordance with Article 191 of the Constitution.

The National Assembly, earlier in the day, passed the Supreme Court (Practice and Procedure) Bill, 2023 to strengthen checks and balances in the higher judiciary. The bill aims to limit the discretionary powers of Pakistan's top judge to take suo motu notice.

The National Assembly Standing Committee on Law and Justice gave its consent to the bill, which was passed by the government shortly thereafter. The bill was introduced in response to concerns raised by two Supreme Court judges, Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail, who questioned the powers of the Chief Justice. They argued that the apex court should not be dependent on the solitary decision of one individual.