No ‘exclusive suo motu powers’ for CJP, says Justice Isa

No ‘exclusive suo motu powers’ for CJP, says Justice Isa


Senior puisne judge of the Supreme Court (SC) Justice Qazi Faez Isa said on Wednesday that the Constitution empowers the apex court as a whole to take notice of cases of original jurisdiction (suo motu), and not just the top judge.

Speaking at an event commemorating the golden jubilee of the Constitution, Justice Isa stressed that the book “is not to serve the interests of a select few people, politicians, parliament or the judiciary, but the people”.

Notably, Justice Isa had led the bench that had previously ruled that the “Supreme Court Rules, 1980 (the Rules) neither permit nor envisage special benches” ordered suspending all suo motu cases — under Article 184(3) of the Constitution — until amendments were made to the SC rules governing the chief justice’s discretionary powers.

The SC had later “disregarded” the judgment, leading tensions to boil as parliament pushed through the Supreme Court (Practice and Procedure) Bill 2023 only to be suspended by the SC.

“The meaning of the SC in Article 184(3) is that all judges and the chief justice unanimously [invoke original jurisdiction]”, he said, adding that “my opinion is not important, the opinion will be that of the Constitution.”

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“I could be wrong but in Article 184(3) the word suo motu does not even exist,” he said, explaining that it only included matters of “public interest” and the provision of “fundamental rights”.

“The way I understand it is that this space was left for the oppressed, for the brickkiln workers, for bonded labourers, for women denied an education and children forced into labour” because ordinary legal provisions could not tend to their plight, he said.

“Sometimes this provision has been used for very good purposes but sometimes for really bad ones,” he added.

Justice Isa held that suo motu notices should be dealt with “great care” when invoked because there is no constitutional space for appealing against it so that “one party may benefit but another may be harmed”.

He also acknowledged that some of his colleagues believe that “only the chief justice has the power” to take suo motu notices and act as “master of the roll” but responded by saying that “the Constitution does not state this”.

He also said that “egos” should be set aside in deciding such matters.

‘A dark history’

He also reflected on the ‘Fall of Dhaka’ as a dark chapter in the history of Pakistan, he said that the spilt between Pakistan and Bangladesh was not “sudden” in 1971, as he maintained that its seeds were sown by Justice Munir in February 1974 when Sheikh Mujib was invited to the second Organisation of Islamic Cooperation conference.

“Whether Justice Munir’s decision was right or not should be decided by a referendum. History has taught us seven times. The Constitution is a heavy burden on us, we have taken an oath to protect the Constitution,” he said.

He also spoke of the inclusion of Article 58(2b) later during the dictatorial regime of Ziaul Haq.

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“For his protection, he [General Ziaul Haq] inserted another constitutional article that came to be known as Article 58(2b), so that when he wishes, he can dismiss an elected government,” Justice Isa said, terming the provision “another seed of hatred”.

Justice Isa also highlighted that the same article was later used twice by the next president Ghulam Ishaq Khan, once against Benazir Bhutto’s government and the next time against Nawaz Sharif’s.

“It also brings some shame to me that the Supreme Court kept on supporting these steps. It was challenged that the resolution is wrong but they (the SC) said ‘Let’s move on’,” said Justice Isa.

He also included Gen Parvez Musharraf in his criticism mentioning not only his “Proclamation of Emergency” but also his introduction of Article 270AAA .

Nonetheless, the senior judge stressed that in his opinion, the purpose of the Constitution was to serve the interests of the people and hoped that the critical juncture would allow Pakistan to break free from the mistakes of the past.

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