Supreme Court says time has come to address suo motu ‘imbalance’

ISLAMABAD: The Supreme Court has observed that the time had come to recognise “imbalance” in exercising the suo motu jurisdiction that ought to be “addressed”.

“The suo motu invoking of the jurisdiction of the Court under Article 184(3) has, over the years, come in for its share of analysis, debate, discussion and, indeed, criticism,” read a 40-page detailed judgment authored by Justice Munib Akhtar in a case in which it was declared that the chief justice of Pakistan was the “sole authority by and through whom the suo motu jurisdiction can be, and is to be, invoked/assumed” under Article 184(3) of the Constitution”.

“It must be acknowledged that this is not something confined just to the bar but extends to the bench also. That the jurisdiction can be so invoked cannot now be gainsaid. But the time has come to recognise that there is a certain imbalance, which ought to be corrected,” Justice Akhtar detailed verdict added.

In August 2021, a five-judge larger bench headed by then acting CJP Umar Ata Bandial had recalled its two-member order over the harassment of media personnel by state institutions. Now, the larger bench has issued reasons for that order.

Justice Akhtar, while authoring the detailed judgment, noted that the “imbalance lies in what has been called the fourth element” — the link or bridge between the invoking of the jurisdiction and the exercise of it.

“Law and practice require that the suo motu invoking of the jurisdiction lies solely with the chief justice … the law mandates that the constitution of benches for the exercise of the jurisdiction lies with the chief justice alone. It is this that creates an imbalance, and we need not dwell on whether this is a matter of perception only, or both perception and reality. Either way, it is something that, it must be fairly conceded, ought to be addressed.”

The court posed the question of how was the balance to be achieved.

“To this different answers can be given. However, the one that seems to us to be most readily capable of application is for a suitable practice to develop and crystallize in relation to the ‘fourth element’. Since both the suo motu invocation of the jurisdiction and the constitution of a bench to exercise that jurisdiction lie in the same hands, it is for those hands, in our respectful view, to act in a manner that dispels any perception of the imbalance.”

The court also held that it was constitutionally impermissible and conceptually non-viable for a bench of the court constituted and acting judicially to exercise suo motu jurisdiction as it was the chief justice alone who might do so.

The judgment noted that a division bench led by Justice Isa acted in a ‘constitutionally impermissible manner’.

“We are, with respect, unable to subscribe to the action taken by the learned Bench-II. The order of 20.08.2020 could not be allowed to stand.”

The court also noted that when the bench was hearing the matter, another extraordinary event occurred.

“The learned senior member of Bench-II (Justice Qazi Faez Isa), on 25.08.2021, filed an application CMA [civil miscellaneous appeal ]in this matter. The text of the CMA ran to 15 pages. In it, the learned judge sought, inter alia, to justify the order dated 20.08.2021 and to criticize and attack the formation of the larger bench by the HACJ and the order of 23.08.2021 made by the larger bench. Indeed, the order last mentioned was referred to as a ‘purported order’ passed by a ‘monitoring bench’. A wholly unwarranted attack ostensibly directed at the registrar of the court was also launched,” the apex court noted.

“This was an extraordinary and unprecedented intervention in pending proceedings. We say no more. While we chose, in order to maintain the dignity of the court, not to draw attention to the CMA during the course of the hearing, it is necessary, as a matter of law, to give quietus to it. It is hereby declared, and directed to be, expunged from the record.”

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