August 28, 2021
By Ahmed Saeed
Senior lawyers have called for amending Supreme Court rules 1980 for regulating the suo motu powers of the Chief Justice of SC as given in Article 184(3) of the constitution.
President of the Supreme Court Bar association Latif Afridi said that the SC rules are ambiguous regarding the use of suo motu powers and lawyers have been demanding for long to bring clarity in this regard so that misuse of suo powers can be curtailed.
Senior lawyer and former vice chairman Pakistan Bar Council Amjad Shah was also of the view that unbridled powers of the chief justice to take suo motu actions has created controversies in the past and the entire institution had to suffer for one person wrongdoings.
“It will be better if the rules are devised to steer the suo motu powers of the chief justice as it will bring more transparency in invoking Article 184(3)”, Shah added.
This comes after apex court’s five-member bench ruling that only the Chief Justice has the authority to invoke the suo motu jurisdiction of the SC.
“No bench may 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, but not limited to, the issuance of any notice, making any enquiry or summoning any person or authority or any report) unless and until the Chief Justice has invoked/assumed the said jurisdiction”, the order said.
The bench was headed by acting chief justice Umar Ata Bandial.
The order also “recalled” the order passed by the division bench comprising of Justice Qazi Faez Isa and Justice Jamal Mandokhail in a matter related to assaults on journalists and press freedom. The two-member bench had ordered the state functionaries to appear before the court and apprised it of the progress made in cases related to attack on journalists.
Lawyers disappointed over 5-member bench verdict
Commenting on the judgment, Afridi said that the decision is unfortunate as it will expand CJ’s discretionary powers.
“In article 184(3), it is clearly mentioned that Supreme court has the authority to invoke its suo motu powers and the article 176 defines that the SC will consist of a chief justice and all other judges of the supreme court. So, in essence, the power to take suo motu action on any matter should be used by full-court consisting of all the judges.”
Afridi, who also appeared before the five-member bench vowed not to file a review petition against the decision. He said that there is a clear divide among the apex court judges and lots of differences between the bar and the bench. “Challenging this decision will be a futile exercise and it will only further expose and widen the differences among the judges.”
Salahuddin Ahmed, president of the Sindh high court bar association termed the decision unfortunate. In a tweet, he said, “at a time when people are calling for greater regulation & decentralization of CJP’s discretionary powers (including suo motu), this bench with 3 future CJPs chooses not to provide any guidelines in this regard & instead clothes office of CJP with even greater powers.”
No lawyer will appear before SC on Sep 9
The SCBA president said that there is strong resentment among lawyers regarding some recent appointments of the apex court judges as the principle of seniority was not followed in these appointments.
He said that lawyers will observe a complete strike on September 9 when the Judicial Commission will meet to discuss the elevation of Justice Ayesha Malik to the SC. “We will not appear before the judges and we have also written a letter to the registrar supreme court and conveyed him our decision.”
However, he was unclear about a protest or sit-in outside the SC building on the constitutional avenue. “We are consulting with lawyers’ bodies and will decide the venue of our protest soon.”
When asked that why is he opposing the elevation of the first female judge to the apex court, Afridi said that he is not against her elevation because of her gender but he is opposing the appointment as it is against the principle of seniority.
“I am the one who proposed that the strength of judges in the SC should be increase to 27 from 17. And out of these 10 news judges, five must be women”, Afridi added.