Suo motu powers rest with Supreme Court, not just CJP: Justice Isa

Justice Qazi Faez Isa has declared that the suo motu powers rest only with the Supreme Court and not just the chief justice of Pakistan, reported 24NewsHD TV channel.

Justice Isa said the Constitution gave the top court as a whole the right to take suo motu notice, adding that this power did not exclusively lie with the chief justice of Pakistan (CJP).

Speaking in Islamabad on Wednesday, the apex judge said the word “suo motu” does not mention in the Constitution of Pakistan.

Addressing “Pakistan’s Constitution” seminar at a university in Islamabad on Wednesday, Supreme Court’s Justice Qazi Faez Isa said Article 184/3 of the Constitution was meant to protect the oppressed and should not be misused for personal gain. 

He emphasized that the Supreme Court has the power to take up cases related to the public interest and the enforcement of fundamental rights under Article 184/3.

Justice Qazi Isa also stressed the importance of using this article carefully and not abusing it, as it cannot be used to benefit anyone. He noted that every law provides for at least one appeal right, except for a constitutional appeal against Article 184/3. 

“The meaning of the SC in Article 184(3) is that all judges and the chief justice unanimously [take suo motu notice],” Justice Isa said. “My opinion is that when the court sits, you call it the SC and Article 184(3) starts with ‘Supreme Court’. It does not mention senior puisne judge or chief justice. So my opinion is that only the SC has this right.”
 
Article 184(3) of the Constitution sets out the SC’s original jurisdiction, and enables it to assume jurisdiction in matters involving a question of “public importance” with reference to the “enforcement of any of the fundamental rights” of Pakistan’s citizens.

Justice Isa said that some of his colleagues were of the opinion that only the CJP could exercise the right to take suo motu notice. “The Constitution does not say this. If it does, you may tell me the article.”

Talking about another “opinion” regarding the CJP being the “master of the roster”, he again stated that there was no mention of it in the Constitution. The senior judge said that the word suo motu was a Latin term that was not even mentioned in the Constitution.

He said there were “certain requirements” — such as if the matter was of public importance or if enforcement of fundamental rights was required — for which a suo motu notice could be taken under Article 184(3).

He said that as per his understanding, Article 184(3) was meant for those treated unjustly, such as “brick kiln workers, bonded labourers, women who were being deprived of education, forced child labour” as such citizens did not have access to legal representation.

He termed the article to be meant for the protection of such people, noting that it had been used “abundantly” in Pakistan.

Expanding upon the circumstances when Article 184(3) should be invoked, Justice Isa said it could not be used to benefit a specific person and should instead be used in matters which affected society as a whole and which concerned fundamental rights.

“Where these two things are not applicable simultaneously, this article cannot be used,” he added.
The senior apex judge also said that this was the only kind of case where there was no right to appeal the court verdict. “When this article is brought into use, one should be very vigilant in each step they take.”

Justice Isa also highlighted the resilience of Pakistan’s Constitution, which has faced numerous challenges over the years. He also stated that if a decision is wrong, it will remain wrong, regardless of the majority’s support.

The apex court judge further commented that history has taught us lessons seven times (from 1954 to 1999) and that if we fail to learn from history, it will repeat itself.

Talking about Pakistan’s dark chapter of ‘Fall of Dhaka’, Justice Isa said Pakistan did not suddenly break into two in 1971, adding its seeds were sown by Justice Munir 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.

The SC judge remarked that PPP founder Zulfikar Ali Bhutto was sentenced to death by court, then a drama of democracy and referendum was staged. “When a referendum is held, the turnout is 98 percent,” he stressed.

He went on to say that the Constitution is a gift that will not be given again; it has been damaged many times, yet stands today. He said a government officer took over the country on October 12, 1999, on November 2007, the dictator took another unconstitutional step.

“Pervez Musharraf himself gave himself constitutional protection. A wrong decision will remain wrong even if it is by a majority.”

Justice Isa further said the concept of caretaker governments was given for transparency in elections. Unless people understood the Constitution, it will have no value, he added.