Islamabad: A special bench of the Supreme Court of Pakistan, with a majority of two to one, on Wednesday held that hearing on all cases under Article 184 (3) be postponed until amendments are made to the Supreme Court Rules governing the chief justice’s discretionary powers.
Led by Justice Qazi Faez Isa and comprising Justice Aminuddin Khan and Justice Shahid Waheed, a three-member bench of the apex court passed the order in a suo motu case related to examining the grant of 20 additional marks to a Hafiz-e-Quran student while admitting them for an MBBS/BDS degree.
The bench was formed by the current Chief Justice of Pakistan, Umar Ata Bandial.
Justice Isa, while authoring the majority judgement, held that neither Constitution nor the rules give CJP the power to make special benches or select judges who will be on these benches.
“The rules do not grant any power to Registrar or to the Chief Justice to change the judge or judges on the Bench or to reduce their number,” the order stated.
Justice Aminuddin Khan also endorsed Justice Qazi’s views.
However, Justice Shahid Waheed dissented from the order. The order said that the matter be postponed until the framing of SC rules. He observed that raised objections and said that “the points raised and discussed in the order were not subject to the case”.
The order, penned by Justice Isa, mentioned: “The Supreme Court Rules, 1980 (the Rules) neither permit nor envisage special benches. However, a Special Bench comprising of three Judges’ was constituted to hear this case.”
Concerning article 184(3) of the Constitution, the order said that there are three categories of cases.
“Firstly, when a formal application seeking enforcement of Fundamental Rights is filed. Secondly, when (suo motu) notice is taken by the Supreme Court or its Judges. And, thirdly cases of immense constitutional importance and significance (which may also be those in the first and second categories). Order XXV of the Rules only attends to the first category of cases. There is no procedure prescribed for the second and third categories of cases.
It said that the situation is exacerbated as there is no appeal against a decision under Article 184(3) of the Constitution. “The Rules also do not provide how to attend to the following matters: (a) how such cases be listed for hearing, (b) how bench/benches to hear such cases be constituted and (c) how judges hearing them are selected.”
The majority order also said that the top court rules also do not provide how cases be listed for hearing, how bench/benches to hear such cases be constituted and how judges hearing them are selected.
