• AG backs suggestion; Justice Bandial says larger bench has no intention to interfere in the two-judge bench’s order
• Justice Isa says the larger bench proceeded on ‘misconception’

ISLAMABAD: One of the five judges of the Supreme Court’s larger bench in the journalist harassment case has suggested that the two judges who had initially taken up the case be also made part of the larger bench to help strengthen public confidence in the judiciary.

“Would not it be appropriate that the two judges [Justice Qazi Faez Isa and Justice Jamal Khan Mandokhel], who earlier issued August 20 order, be made part of this bench?” observed Justice Qazi Mohammad Amin Ahmed while pointing towards government’s top lawyer Khalid Jawed Khan on Wednesday.

While the attorney general replied in the affirmative, acting chief justice Umar Ata Bandial, who is heading the five-judge bench, made it clear that the court had no intention of interfering in the substantive order of Aug 20 but that order [of the two-member SC bench] created certain difficulties and therefore needed to be addressed.

However, Justice Qazi Faez Isa in a note argued that the Aug 23 order of the larger bench proceeded on ‘misconception’ as if the two-judge bench had taken suo motu notice of journalists’ harassment.

Justice Qazi Amin is the member of the Justice Bandial-led bench that is seeking to determine procedures for invoking suo motu actions on matters of public importance.

In response to the Justice Amin’s suggestion, the AG said the formation of the benches fell within the exclusive domain of the chief justices though the larger the bench, merrier would it be.

At the outset, Mr Khan also asserted that the existing five-judge bench hearing the journalist harassment matter was not a “monitoring bench” (in reference to Justice Isa’s note stating that no jurisdiction is conferred which permits one bench to monitor the working of another bench, let alone to hold its orders in abeyance). The attorney general insisted that the present bench was not a monitoring bench but an enlarged bench that had taken up a separate proceeding, which was not part heard and therefore could be taken up.

Justice Isa, in his note to the larger bench, stated that if one bench of the apex court starts monitoring the workings of another bench, or different benches start to undo, supplant or set aside the orders of other benches, it would result in chaos and the collapse of the judicial system.

Referring to Justice Amin’s suggestion, Justice Bandial observed that formation of larger bench affected working of courts that had been experienced during the past one and a half years. He claimed the present larger bench was not pre-empting anything but it would be appropriate to explore some structure to manage petitions under Article 184(3) of the Constitution.

“You cannot entertain documents by handing over at the Bar (in the courtroom) instead of getting it registered at the office first, otherwise the entire system would collapse,” he feared.

While referring to such practice, Justice Bandial said one could not destroy the structure established under the Constitution.

Justice Muneeb Akhtar highlighted that the key question was about who could invoke the suo motu jurisdiction. He observed that even a bench could do so but referring the matter to the Chief Justice of Pakistan was merely an administrative exercise.

The AG argued that he did not have any cavil with the contents of the Aug 20 order of the two-judge bench but one possible outcome of the present proceedings could be that the last paragraph of that order was modified to the extent that the harassment matter be referred to the CJP instead of fixing it before the same two-judge bench for Aug 26.

Citing instances and judgments in which the matter was referred to the CJP for initiating suo motu notice, the AG argued that the jurisdiction conferred under Article 184(3) was plenary and inquisitorial rather than adversarial, its frequent invocation called for caution.

He contended that the suo motu needed to be invoked and exercised in a manner that lent credibility, certainty and consistency. According to him, the court’s primary function being appellate, with an unprecedented and proliferating pendency exceeding 50,000 cases, calls for restraint in invoking this jurisdiction by leaving it for exceptional cases where the high courts cannot provide relief to the people or where there is necessity to address issues at the level of apex court given exceptional circumstances.

The AG argued the human rights petitions or information falling within the ambit of Article 184(3) should be placed before a bench of not more than two judges, “subject to administrative order of CJP”. According to him, the bench so constituted would decide whether further proceedings under Article 184(3) were warranted and if it was so held, the bench could frame legal questions and issue notices to the respondents and refer the matter to the CJP for constitution of a five-judge bench for further hearing.

The attorney general was of the opinion the same procedure be repeated if the matter was referred by a judge. And where the bench of the apex court in a pending case either on its own or on any petition decided that the matter should proceed under Article 184(3), it may frame legal questions and issue notices to the respondents and refer the matter to CJP for the constitution of a five-judge bench.

Justice Isa’s note

In a note to the larger bench, Justice Isa wrote that its Aug 23 order proceeded on misconception like the two-judge bench took suo motu notice. The apex court had for the last six decades consistently held that rules of procedures of the court were designed to help and to thwart the grant to the people of their rights, he added.

Referring to the July 19, 2005 circular entitled: Standing Operational Procedure for Exercising suo motu powers within the contemplation of 184(3), Justice Isa stated that CJP did not have any power to formulate SOPs. The circular was self-serving to empower the CJP that the Constitution does not permit, the note added.

Justice Isa explained that although the CJP was empowered to constitute benches, he could not determine which case should be fixed before which particular benches except when it was under the unusual circumstances in view of the division of opinion or a member of the bench stated that a particular case should not be placed before him.

He also regretted that the note prepared by the SC registrar on the Aug 20 order for the larger bench in fact proceeded to protect the government’s interest. Pointing out that he had worked in the PM Office before becoming the registrar, Justice Isa said the Constitution mandated separation of the judiciary from the executive.

In one of the cases, Justice Isa mentioned, notice was taken on an anonymous WhatsApp message from an undisclosed number challenging the levy of the federal advance income tax and excise of duty and sales tax on services on mobile phone top ups. That bench suspended the levy of all taxes and resulted in the loss of Rs100 billion, which could not be retrieved, he regretted. Likewise, he said, the country suffered an astronomical financial loss when petitions under Article 184(3) were filed in the Reko Diq exploration matter and resulted in a whopping $6.4 billion award against Pakistan.

Justice Isa said the present case required immediate attention due to which he did not refer the matter to the CJP for the constitution of a bench. The application by the Press Association of the Supreme Court was urgent and time sensitive as the journalists were being abducted, beaten up and shot at, he said. If on the account of SC’s tardiness, harm came to another journalist who would be responsible, he questioned.

Published in Dawn, August 26th, 2021