ISLAMABAD: Justice Yahya Afridi withdrew himself from a three-judge bench on Tuesday while expressing his inability to hear suo motu cases unless proper rules are framed by the Supreme Court aimed at regulating the exercise of powers under Article 184(3) of the Constitution.

Headed by Justice Maqbool Baqar, the bench, consisting of Justice Yahya Afridi and Justice Qazi Mohammad Amin Ahmed, had taken up a case which was initiated by former chief justice Saqib Nisar on a suo motu in 2018 about certain appointments in the Sindh education department.

At the outset of the case, Justice Afridi expressed his inability to hear the matter, adding that such cases should be taken on the breach of fundamental rights or cases which raised question of public interest.

Expressing further, Justice Afridi observed that in his view the exercise of the suo motu cases should be determined in such a manner that it should provide guidelines on how the bench be constituted and what should be the composition of the bench which takes up cases under Article 184(3) of the Constitution.

Recuses himself from three-judge bench hearing suo motu case

Consequently Justice Baqar referred the matter to Chief Justice of Pakistan (CJP) Gulzar Ahmed for the constitution of a new bench.

Last week, Justice Syed Mansoor Ali Shah had also recused himself from hearing suo motu cases on two occasions when the court had taken up cases regarding complaints about alleged corruption in the Thar Coal project as well as a review petition against the removal of Pakistan Television (PTV) Chairman Ataul Haq Qasmi.

On Sept 9, a convention of lawyers which was held at the Supreme Court Bar Association (SCBA) complex had also resolved that the unfettered and unstructured exercise of discretion was a recipe for the abuse of power whether exercised in the appointment of judges or constitution of benches, fixation of cases or initiation of suo motu proceedings and the same must be duly regulated through rules and guidelines if public confidence in the apex court was to be maintained.

On Aug 26, a five-judge Supreme Court bench headed by Justice Umar Ata Bandial in a short order had held that the invocation or assumption of the suo motu jurisdiction of the apex court under Article 184(3) was based on and would be guided by the principles, suggesting that the CJP was the sole authority by and through whom this jurisdiction could be invoked or assumed.

Likewise, the chief justice may invoke or assume the suo motu jurisdiction in his discretion and will do so if so requested or recommended by a bench of the Supreme Court, the order had explained.

The order also affirmed in clear terms that no bench will take any step or make any order, whether in any pending proceedings or otherwise as would or could constitute exercise of the suo motu jurisdiction such as issuance of any notice, making any enquiry or summoning any person or authority or any report unless and until the CJP has invoked or assumed this jurisdiction.

The ruling, however, clarified that all matters already pending in respect of or involving the suo motu jurisdiction of the court will continue to be heard and disposed of by such benches as constituted from time to time by the chief justices.

Similarly, in March this year, Justice Syed Mansoor Ali Shah while deciding an appeal had observed that having taken an oath to preserve, protect and defend the constitution, a judge cannot be forgetful of the fact that he himself was first and foremost subject to the constitution and the law, adding judicial overreach was when the judiciary starts interfering with the proper functioning of the legislative or executive organs of the government.

Justice Shah had also observed that a constitutional judge cannot issue directions which do not draw legitimacy from the constitution.

Similarly in 2018 Justice Qazi Faez Isa had also objected to the exercise of Article 184(3) of the constitution by holding that before exercising its original jurisdiction, the Supreme Court must satisfy itself that the jurisdiction it was assuming accords with the constitution.

The exercise of Article 184(3) had always been in debate and the former CJP Mian Saqib Nisar had also expressed his intentions of determining the jurisdiction exercised under Article 184(3) to regulate the powers of the court.

Published in Dawn, September 30th, 2021