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| The Chief Justice's 'spontaneous notice power' led to a split in the Judiciary |
After the National Assembly of Pakistan, the Upper House of the Parliament (Senate) has also approved the 'Supreme Court Practice and Procedure Bill 2023' related to judicial reforms today by majority vote.
According to the draft of this bill called Supreme Court Practice and Procedure, a committee, which will include the Chief Justice and two senior-most judges, will now take decisions on the notices and the formation of benches.
Earlier this power was vested with the Chief Justice of the Supreme Court.
This bill has come at a time when all eyes are on the Supreme Court to end the political tension in the country, but differences of opinion are also emerging among the judges within the highest court of the country.
An example of this was the disagreement on the part of the judges on the bench in the election postponement case and that is the reason why questions are being raised about the timing of this bill.
While questions have been raised by the PTI on the timing of the passage of this bill, the government claims that the purpose of this bill is not to limit the powers of the Chief Justice but to determine the steps in this regard.
Spontaneous notice powers and voices from within the Supreme Court
It should be remembered that voices are being raised from within the Supreme Court regarding limiting the powers of the Chief Justice of the Supreme Court to take automatic notices.
The latest example of this is found in the majority decision of the three-member bench headed by Justice Qazi Faiz Isa yesterday.
The majority judgment of Justice Faiz Isa and Justice Muhammad Amin said that until the judicial rules are framed, the hearing of all cases related to the suo motu notices taken by the Chief Justice under Article 184/3 of the Constitution shall be postponed. be given
Earlier, objections were first raised by Justice Athar Minullah in the Spontaneous Notice Case on Provincial Assembly Elections.
In his note, he said that the interpretation of the Constitution by this court has implications for the common people and future generations. has also become necessary.
In a note on behalf of Justice Mansoor Ali Shah, he also expressed reservations about the Chief Justice's decision to automatically take notice of the provincial assembly elections.
Similarly, Justice Jamal Khan Mandukhel wrote in his dissenting note that 'in such a situation, it is not appropriate to refer the matter to the Chief Justice of Pakistan to take notice under Article 184-3 of the Constitution.'
This power has been exercised by the Chief Justice of the Supreme Court in Pakistan for more than a decade and has often been controversial.
However, what is the reason that during the last few months, not only the Judiciary has expressed reservations about the Chief Justice's authority to take suo moto, but the government has also passed a bill in this regard?
What is Article 184/3?
Under Article 184/3 of the Constitution, the Supreme Court has the power to take notice of any incident which is either a matter of public interest or where fundamental rights are being violated.
Barrister Salahuddin Ahmed told the BBC that the Supreme Court does not have to wait for a High Court decision in this regard and can give a decision directly.
"Initially, it was interpreted to mean that a petitioner goes to the Supreme Court and then the Supreme Court gives a decision on his petition, but around the year 1990, the Supreme Court changed the interpretation in this regard and started hearing under automatic notice. Did it.'
Barrister Salahuddin said that there are two types of cases, one in which a petitioner takes a petition and the other in which notice is taken automatically.
Before the tenure of former Chief Justice Iftikhar Chaudhry, the use of this power by Chief Justices was less, however, during the tenure of Iftikhar Chaudhry, several controversial automatic notices were taken.
After his tenure, controversial Somoto notices were taken during the tenure of Justice Saqib Nisar due to which the authority of the Chief Justice became controversial.
On the one hand, there was the Panama Leaks case against former Prime Minister Mian Nawaz Sharif, about which the Supreme Court had previously dismissed the petitions filed by the current Prime Minister Imran Khan as unnecessary and inadmissible. But later these applications were converted into notices by default.
On the other hand, in the history of the Supreme Court, in the case of actress Atiqa Odo, notice was also taken of a bottle of liquor.
Are decisions under automatic notice only controversial?
Due to this power, the judicial intervention has also been appreciated in many cases of public interest.
In August 2021, after the attack on the temple in the city of Rahim Yar Khan in the province of Punjab, then Chief Justice Gulzar Ahmed took notice and ordered to arrest of the characters involved in the attack and complete the trial in four months. After this notice, a commission on minority rights was formed by the court.
Similarly, in 2013, 80 people were killed in a suicide attack on a church in Peshawar, after which the then Chief Justice Tasadeq Hussain Jilani took suo motu notice in which the Kailash tribe and the Ismaili community in Chitral were killed. Matters like threats were also heard.
In the year 2014, major progress was made in this regarding came when the court ordered the creation of a National Council for Minority Rights to monitor incidents of violations of minority rights and make policy recommendations in this regard.
Did the issue of limiting the powers of the Chief Justice suddenly come up?
At present, while the judicial reform bill is being discussed, it is also being discussed what it means for the judiciary and the government to suddenly talk about it.
Barrister Salahuddin Ahmed while talking to BBC said that "in this regard, the beginning was already done long ago." Various judges of the Supreme Court have complained that we are being separated from important cases and these voices were raised and then this was openly expressed in the notices of the judges in the Punjab Assembly election.
He said that either the Supreme Court could have resolved it, the rules of the Supreme Court could have been amended in this regard and a full court could have been called and the rules amended under Articles 199 and 191. could
But for the last four years, the Supreme Court has not called any full court meeting. In this regard, former Chief Justice Asif Saeed Khosa talked about revising the powers of the Chief Justice related to Article 184/3 by forming a full court and amending the rules of the Supreme Court, but he did not succeed in doing so. There were coins.'
It should be noted that for the past several years, it has been said by the political parties of Pakistan that some judges support them or their opponents.
According to Barrister Salahuddin, "In such a case, a full court can be formed to decide cases that are of a political nature."
Talking about the decision of the bench headed by Justice Faiz Isa, he said, "I don't think it is a direct decision because Supreme Court benches do not give decisions against each other." But this is definitely an indication that there is serious disagreement in the judiciary as to what are the rules for taking notice under Article 184/3 and how the benches will be constituted in this regard.