ISLAMABAD: The Supreme Court put in abeyance on Monday the Aug 20 order by a different bench in the journalist harassment case, but sought assistance from the stakeholders in determining the contours of exercising suo motu actions.

A five-judge SC bench, headed by Acting Chief Justice Umar Ata Bandial, observed that since implementation of the Aug 20 order may obscure and unsettle the practice of invoking suo motu jurisdiction resulting in needless uncertainty and controversy with attendant consequences, Attorney General Khalid Jawed Khan, Pakistan Bar Council vice chairman Khushdil Khan, Supreme Court Bar Association (SCBA) president Abdul Latif Afridi and the Press Association of the Supreme Court (PAS) president may come prepared when the case will be taken up again on Wednesday.

Representatives of the Pakistan Federal Union of Journalists were also present in the courtroom during the hearing.

On Friday, a two-judge SC bench consisting of Justice Qazi Faez Isa and Justice Jamal Khan Mandokhel had taken up the case on an application moved by the PAS highlighting frequent incidents of harassment of journalists and summoned the director general of the Federal Investigation Agency (FIA), Islamabad police chief as well as the secretaries of interior, information and religious affairs for Aug 26.

Acting CJP dispels impression of any division among judges of apex court

On Monday, the acting CJP also dispelled the impression of any division among the judges of the Supreme Court and said the court wanted to protect the interest of journalists within the bounds of the law. He regretted that journalists did not trust the institution when there was an established procedure of taking suo motu notices, since the application was furnished before the bench instead of properly filing it at the institution branch.

The observation came when SCBA president Latif Afridi pleaded during the hearing that no impression should be given which suggested that the Supreme Court was divided, adding that there was a concern among the legal fraternity about a division when the top court should remain united.

A divergence in the difference of opinion is acceptable but not the division, he said and requested the bench to refer the matter to a full court consisting of all judges of the Supreme Court for setting up parameters of taking suo motu actions and laying down a proper procedure in this regard.

“For your satisfaction, we will sit together [with Justice Isa],” Justice Bandial said, adding that the judges were not available during the current week to form a full court.

AGP Khalid Khan highlighted during the proceedings that a similar matter on which the two-judge SC bench had passed the order on Aug 20 was pending before the Islamabad High Court.

In its order, the five-judge SC bench observed that it had before it a matter which originated in and incorporated an order of Aug 20 by a two-judge bench on an application directly received and entertained in the court.

The Aug 20 order takes suo motu notice of the grievances expressed in the application submitted by a number of journalists, including the PAS president, in which notices were issued to several federal government authorities as well as to law officers of the federation and provinces. The next date of hearing in the matter is fixed for Aug 26 before the same bench that had passed the order when in the week commencing Aug 23 the same bench was not available and, therefore, the question arises whether a special bench was to be constituted, the larger bench said in its order.

“There is a settled practice of the Supreme Court regarding the entertainment of suo motu actions on the recommendation made by the benches of the court during judicial proceedings pending before them. But this case is different because no judicial proceeding was pending before the bench on Aug 20 regarding the grievances or concerns of the journalists. Rather the order was passed on a fresh unregistered application handed over and entertained in the court,” the order said.

The order highlighted that it was important that the original constitutional jurisdiction of the court under Article 184(3), read with its powers under Article 187 of the Constitution, was invoked under a procedural scheme that lends credibility, certainty and consistency to the substantive proceedings that follow in the exercise of that jurisdiction.

“The court has a discernible settled practice regarding the procedural issue of how suo motu motions may be entertained by the Supreme Court,” the order said but regretted that in contrast, however, the Aug 20 order, prima facie, makes a departure from the norms of the applicable procedural practice.

“Taking into account the distinction between the invocation of the jurisdiction of the court on the one hand and the exercise thereof on the other, the question arises: how is the suo motu jurisdiction of the court under Article 184(3) to be invoked?

In the light of the answer to this question, the propriety, manner and extent to which the Aug 20 order can be implemented by the office is another question that needs to be addressed,” the order said, adding that the court would like to hear the principal stakeholders who were called upon to assist the court in matters of jurisdiction and law. It said the court would also invite assistance of the counsel for the applicant journalists who have brought their grievances to the court.

“However, it must be borne in mind that notwithstanding an important question raised before the court by the applicant journalists, we are neither in a position nor intend to consider their substantive grievance in the exercise of our suo motu jurisdiction at this stage. The only aspect of the case that is presently under our consideration is the manner and procedure whereby the suo motu jurisdiction is to be invoked and in particular whether, and if so how, such action may be initiated at the instance or on the recommendation of the two-judge bench.

“At the moment, the judicial order of Aug 20 directing notice to and reports from several federal government authorities is in the field. On account of the question now before the court which goes to the root of the jurisdiction, it is inappropriate to implement the said order because that may obscure and unsettle the practice of the court for invoking its suo motu jurisdiction resulting in needless uncertainty and controversy with attendant consequences.

“Therefore, the resolution of the question raised before this court at an early date is essential,” the order said, adding that accordingly the parties and the law officer will come prepared with their submissions on Aug 25. Meanwhile, the Aug 20 order will remain in abeyance, the order said.

Published in Dawn, August 24th, 2021