F.P. Report
ISLAMABAD: Chief Justice of Pakistan (CJP) Justice Gulzar Ahmed has taken his first suo motu notice since assuming the charge as the country’s top judge, on the situation arising out of coronavirus crisis and the steps being taken by the federal government to curb the spread of COVID-19.
A five-member larger bench, headed by the CJP, fixed the hearing of a case on April 13, according to a notification issued by the apex court on Friday.
The development comes days after Justice Gulzar had expressed displeasure over the federal government’s measures to curb the spread of coronavirus.
“The government is just calling in meetings whereas no work is being done on the ground,” he had remarked while hearing a petition filed against the Islamabad High Court (IHC) verdict of releasing under trial prisoners in view of COVID-19 fears.
He also slammed the government’s decision to shut down health facilities for people suffering from ailments other than the global pandemic by closing out-patient departments (OPDs) in all hospitals across the country in the wake of the coronavirus outbreak.
Meanwhile, advocate Usama Khawar who had earlier filed a constitutional petition on the similar issue wondered why his petition was not fixed for hearing.
Suo motu conundrum
Former CJP Asif Saeed Khosa did not use his suo motu powers during his tenure and had proposed amendments in the the Supreme Court Rules 1980 to regulate suo motu power, which can only be exercised by the CJP under existing laws to adjudicate public interest matters.
The draft was shared on December 12, 2019 in a full-court meeting of the Supreme Court.
According to the draft, the CJP will take suo motu notice on any matter after consulting with two senior most judges of the apex court and subsequently, the matter will be referred to a bench that will examine the matter on judicial side.
The bench’s decision could be challenged through an Intra Court Appeal (ICA), which will be heard by a larger bench.
Ex-CJP Khosa in his first speech on January 17 said that an effort shall be made – either through a full-court meeting or through a judicial exercise – to determine and lay down the scope and parameters of exercise of the original jurisdiction of this court under Article 184(3) of the Constitution.
“And, if deemed appropriate, to carve out the scope of an Intra-Court Appeal in such matters through an appropriate amendment of the Supreme Court Rules or to suitably amend the provisions relating to review jurisdiction so as to enlarge its scope in such cases,” he said.
The first full-court meeting was held on February 6 last year to deliberate this issue.
According to the minute of that meeting, it was resolved that “the issue of exercise of jurisdiction under Article 184 (3) of the Constitution was discussed threadbare from all possible angles and it was affirmed that such jurisdiction will be exercised in accordance with the Constitution”.
Senior lawyers say that during tenure of ex CJP Khosa, there was no consensus among the Supreme Court judges to regulate the public interest jurisdiction and giving right of appeal in suo motu cases through amending the top court’s rules.
They say that the big challenge, however, is to evolve consensus among the Supreme Court judges, who have had a different approach in exercising public interest jurisdiction in the past.
It is debatable whether all judges will be unanimous in structuring the chief justice’s discretionary powers in initiating public interest litigation.
The country is still struggling due to the judicial interference by his predecessors in commercial deals.
Since the lawyers’ movement of 2007, different CJP’s have shown different approaches to judicial activism. In 2009, the superior judiciary led by then CJP Iftikhar Chaudhry initiated public interest litigation for enforcement of fundamental rights.
Later, ex-CJP Saqib Nisar further reinforced the approach of judicial activism. However, former chief justices – Tassaduq Hussain Jillani, Nasirul Mulk, and Anwar Zaheer Jamali –used suo motu power sparingly.
Now, after passage one year, incumbent CJP Gulzar has taken first suo motu notice on the coronavirus crisis in the country.
