Daily Times

A special Supreme Court bench, with a two to one majority, Wednesday ordered suspending all suo motu cases under Article 184(3) of the Constitution until amendments are made to the Supreme Court Rules governing the chief justice’s discretionary powers.

Justice Qazi Faez Isa and Justice Aminuddin Khan, in a detailed order, noted that the chief justice of Pakistan (CJP) does not have the power to make special benches or decide its members, and said that all hearings based on suo motu notices and cases of constitutional significance should be postponed until they are legislated upon.

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. Justice Shahid Waheed dissented from their verdict and will write his separate opinion.

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;n When suo motu notice is taken by the Supreme Court or its judges; and n 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:n How such cases be listed for hearing;n How bench/benches to hear such cases be constituted; and 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.