Will bigger SC bench regulate CJP’s suo motu powers?


A five-judge bigger bench of the Supreme Court led by Acting Chief Justice of Pakistan Justice Umar Ata Bandial is ready to listen to the journalists’ harassment case in a bid to offer readability in respect of invocation of the apex courtroom’s suo motu jurisdiction on Monday (in the present day).

The bigger bench was constituted on Friday after a two-judge bench led by Justice Qazi Faez Isa handed an order on an utility requiring motion in opposition to harassment of media personnel in Pakistan.
As the highest courtroom’s bigger bench takes up the matter in the present day, a debate has began whether or not the CJP’s suo motu powers might be regulated or not.

Senior legal professionals believed it might have been higher if the performing CJP had included senior most judges within the bench. The different members of the bench embody Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Qazi Muhammad Amin Ahmad and Justice Muhammad Ali Mazhar.

A senior lawyer maintained that the performing CJP didn’t like the way wherein the division bench of the apex courtroom had processed the criticism in opposition to harassment of media individuals. The listening to of case was adjourned till August 26.

Earlier, in the course of the tenure of Chief Justice Gulzar Ahmed, Justice Qazi Faez Isa had taken 5 notices on completely different issues like alleged unlawful appointments of administrators basic in NAB, Premier Imran Khan’s tackle to Insaf Lawyers Forum at Convention Centre, allocation of billions of rupees to lawmakers by the premier and delay in elections of native governments.

Interestingly, Justice Isa referred all these issues to the chief justice for structure of an acceptable bench. However, he didn’t refer the matter associated to harassment of media personnel to the CJP and opted to proceed additional. Justice Isa in his order mentioned that the identical bench would hear the case on August 26.

Justice Isa was additionally part of the bench which had taken suo motu discover in opposition to Faizabad dharna by Tehreek-e-Labbaik Pakistan. The matter was proceeded by the identical bench until the tip.
A senior authorities official was additionally of the view that senior judges ought to have been included within the bigger bench when a vital matter was being taken up. He believed that present composition of the bench wouldn’t ship message to the general public.

A senior lawyer requested if a choose whereas exercising suo motu jurisdiction can’t go in opposition to the “established practice” then how the CJP might use identical jurisdiction in opposition to rules and laws.

Another lawyer believed that formation of a bigger bench to look at the judicial order can be a harmful precedent and will have far- reaching penalties in future. He questioned why the bigger bench was in a haste to look at the judicial order.

A lawyer questioned whether or not the bigger bench needed to cease Justice Isa from initiating suo motu proceedings with out the consent of the CJP.

A piece of apex courtroom judges believed that the CJP was “master of roster”, due to this fact, he solely had the authority to type a bench on any subject. Likewise, it was learnt {that a} round was issued in the course of the tenure of former chief justice Iftikhar Muhammad Chaudhry that suo motu proceedings can be initiated by the CJP solely.

All Pakistan Lawyers Representatives Convention additionally resolved that the discretionary powers of CJP, particularly the train of suo motu jurisdiction, should be regulated.

A senior bar consultant revealed that superior bars had been contemplating vigorously elevating the matter concerning the regulation of CJP’s “unfettered powers”. He mentioned points arose as a result of using discretionary powers by CJP in several issues.

The CJP presently enjoys unfettered discretionary powers to represent benches, “fix” circumstances and provoke public curiosity proceedings below Article 184 (3) of the structure.

Likewise, being the chairman of Judicial Commission of Pakistan (JCP) in addition to Supreme Judicial Council, the CJP has huge discretionary powers within the course of concerning judges appointments and their removing below Article 209 of structure.

Since 2012, the Pakistan Bar Council (PBC) had been demanding that the JCP rules must be amended to finish the unfettered powers within the technique of the judges appointment. Similarly, there’s an absence of mechanism concerning entertaining of complaints in opposition to superior courtroom judges.

For occasion, a number of complaints of misconduct had been filed in opposition to former chief justice Saqib Nisar throughout his tenure however none of them had been reviewed.

For a while now, even prime courtroom judges had been elevating their voice for the regulation of discretionary powers of the CJP. Building a case in opposition to “unstructured discretion”, Justice Qazi Faez Isa – in a letter written to Justice Gulzar Ahmed on February 10 – famous that the Supreme Court usually castigated arbitrary train of discretion but unstructured discretion was exercised throughout hearings by benches on vital constitutional issues.

“If the executive’s transgressions are not checked, and instead benches are reconstituted and judges restrained, the people suffer. To exclude senior judges from benches when important constitutional issues are to be heard neither serves the institution nor the people,” the choose famous in his letter.

He mentioned the Supreme Court was the ultimate arbiter of all disputes and the custodian of the structure. It is tasked to make sure that the chief doesn’t overreach or act opposite to the structure.

“Incidentally, you (personally) know that [while working] as [a] counsel for twenty-seven years and as chief justice [of] the Balochistan High Court for over five years, constitutional work is what I mostly did.”
Justice Isa added that the recurrent subject of unstructured discretionary powers had been left unattended by former CJPs and never taken up at full-court conferences. He additionally despatched a replica of the letter to Justice Maqbool Baqar who’s quantity 5 by way of seniority among the many Supreme Court judges.

In October 2020, Justice Yahya Afridi – whereas writing a dissenting word within the Justice Isa case, noticed that the apex courtroom must be extra cautious whereas exercising its advisory and suo motu jurisdictions as a result of no attraction might be mounted in opposition to its judgments and opinions on these issues.

“To maintain judicial discipline and to uphold the rule of law, there is an inherent and dire need for judicial introspection; to structure the unfettered discretion of the worthy Chief Justice of the Supreme Court to constitute benches of the Supreme Court to hear and decide cases under Article 184(3), and in particular, suo motu actions, lest the exercise of such jurisdiction may be seen to have been abused,” the word learn.

However, he noticed that passing any particular findings on the essential matter within the present petition wouldn’t solely be swaying from the difficulty at hand but in addition, on many counts, can be untimely, because the matter was already sub judice earlier than the Supreme Court.

The choose famous that the scope and extent of the time period “matters of public importance” as supplied below Article 184(3) of the structure, had been a difficulty of perennial deliberation of the highest courtroom.

“The judicial consensus reached is for the same to encompass any issue affecting the legal rights or liabilities of the public or the community by large, and it is not restricted to an individual or a group of individuals, how so large the group might be,” mentioned Justice Afridi.

On the opposite hand, Justice Umar Ata Bandial and Justice Munib Akhtar of their rulings noticed that it was for the CJP – because the “master of the roster” – to find out the composition of a bench “and he may, for like reason, constitute a larger bench for hearing the review petition.”

In one other case, each judges held that the CJP was not certain to type a bigger bench on the proposal of minority judges’ view. However, Justice Manzoor Ahmad Malik, who retired in May, noticed that the time period “master of roster” couldn’t be understood to imply that the chief justice of the nation had unfettered discretion concerning structure of benches.

He mentioned the discretion vested within the workplace of the chief justice for structure of benches was to be exercised in a structured method in keeping with the Supreme Court Rules SCR.

Lawyers believed when the apex courtroom regulated all functionaries discretionary powers then the identical must be utilized to the CJP’s unfettered powers.

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