Supreme Court Justice Qazi Faez Isa has vehemently defended his decision to exercise the suo motu jurisdiction in the case regarding the harassment of media persons. After Acting Chief Justice of Pakistan Umar Ata Bandial formed a larger 5-member bench to determine the legal question of how the suo motu jurisdiction should be invoked. The bench called Justice Isa-led 2-member division bench’s decision in the harassment of media persons case a departure from the norms of the applicable procedural practice.
In response, Justice Isa entered a 15-page note in the Supreme Court wherein he said that simply saying that a Supreme Court Justice is ‘not being targeted’ is not enough to dismiss general perception regarding his treatment. He said that if his fellow justices had any apprehensions, they could have deliberated the matter. Justice Isa said he learnt about the formation of the larger bench through the press, not the apex court. Justice Isa said it is unconstitutional and impermissible under the Supreme Court Rules 1980 to seek prior approval of the cause list from the chief justice concerning the cases listed therein before different benches. He said while empowered to constitute benches, the honourable chief justice cannot determine which particular case should be fixed before particular benches except under the unusual circumstance.
Amidst this debacle, the country’s superior bars have pressed the Supreme Court to form a full court to determine the question of how suo motu jurisdiction should be entertained. Sindh High Court Bar Association President Salahuddin Ahmed says that judges who are passionate about a cause – regardless of the nobility of the cause – do not possess enough detachment to hear it objectively. Sindh Bar President also expressed concerns about Chief Justice’s authority regarding case transfer and constitution of benches saying the scenario does not guarantee “no real judicial independence.”
Several veterans and senior bar officials have called for resolution of both issues simultaneously: how should the suo motu be taken and how the benches should be constituted and cases fixed. Supreme Court Bar Association President Lateef Afridi urged the top court to form a full-court citing growing concerns among the lawyers about the perception of differences among Supreme Court judges.
This scenario presents a great opportunity for the apex court to quell all misconceptions regarding its inner workings. The Bar should not back down if the top court fails to clarify the legitimate constitutional questions and other concerns that Justice Isa has raised. He may have had sticky relationships with the corridors of power but he remains a justice that is revered by the lawyers and public alike for his tendency to take a stand. His concerns are valid as well. If a separate, larger bench is tasked with monitoring the workings and orders passed by another bench, it would mean the rapid decay of the judicial system. That one bench would wield the de facto power given its hypothetical authority to undo and set aside the orders of other benches.
The other side also presents compelling arguments. Their assertion relates to the setting of the wrong precedent if different benches start invoking suo motu jurisdiction without referring the matter to the Chief Justice. It is argued that the suo motu powers must be regulated given its frequent misuse. But then, Justice Isa rarely puts a foot wrong if the quashed presidential reference is any evidence.