Dissenting note: Judges can’t raise objections to constitution of benches: Justice Shahid Waheed

ISLAMABAD: Judges cannot raise objections to the constitution of benches and if they do so they would become a complainant, making it inappropriate for them to hear a case, wrote Justice Shahid Waheed of Supreme Court in his dissenting note.

Justice Shahid Waheed made the remarks in a dissenting note in 2, 1 verdict declared in a suo moto case pertaining to the 2018 regulation of the Pakistan Medical and Dental Council (PMDC) that suggested an award of 20 additional marks to candidates for memorising the Holy Quran by heart to get MBBS or BDS degrees.

Justice Waheed was part of the three-judge special bench that heard the case. A day earlier, the other two members of the bench, Justice Qazi Faez Isa and Justice Aminuddin Khan, held that the Constitution did not grant unilateral and arbitrary power to the chief justice of Pakistan (CJP) to list cases for hearing, form special benches and select judges.

“With respect, the chief justice cannot substitute his personal wisdom with that of the Constitution,” Justice Isa said in his remarks in a 12-page judgement he authored.

He proposed that cases under Article 184(3) of the Constitution be postponed until amendments were made to Supreme Court Rules 1980 regarding the CJP’s discretionary powers to form benches.

However, Justice Waheed had disagreed with the judgment.

In a separate five-page dissenting note, Justice Waheed said that the case at hand merited the bench to pass a “regulatory order”.

He noted that the attorney general had asked for an adjournment in order to file a concise statement, while the PMDC had told the court that the regulation in question had been withdrawn and asked for time to bring it on record.

“So, in my view, the requests for adjournment alone were to be considered by the bench, and our order ought to have been confined to it. This means a regulatory order was to be passed. On the contrary, I find that the said requests have been left unattended but certain other points have been discussed in the order which has led me to record this dissenting note,” he said.

Justice Waheed said the first point to be examined was whether the “objection to the constitution of this bench could be brought under consideration in this case”.

“I think it cannot for two reasons. One, a bench, special or regular, is constituted by an administrative order of the hon’ble chief justice, and as such, the present bench […] has been lawfully constituted to hear this case.

“It is to be noted that judgment in the suo moto case no.4 of 2021 is of a five-member bench and thus, takes precedence over all precedents of this court regarding the power of the Hon’ble chief justice to constitute any kind of benches.”

He noted that neither the attorney general nor the PMDC’s counsel had any objections regarding the constitution of the bench hearing the case.

“Given these circumstances, in my humble view, none of the judges of this bench can object to the constitution of the bench, and if they do so, their status immediately becomes that of the complainant, and consequently, it would not be appropriate for them to hear this case and pass any kind of order thereon.

“This reasoning has the backing of the basic code of judicial ethics, to wit, no man can be a judge in their own cause. It is important to state here that this principle confines not merely to the cause where the judge is an actual party to a case, but also applies to a case in which he has an interest.”

He argued that judicial propriety stated that if any judge of the bench had any objection, they would either recuse themselves of refer the matter to the CJP so that the case could be assigned to another bench.

Justice Waheed also said that the “administrative order of the hon’ble chief justice regarding the constitution of the bench becomes fait accompli when a judge in compliance thereof starts hearing the case”.

“Hence, any member of this bench, after having accepted the administrative order of the hon’ble chief justice, is estopped to question the constitution of the bench on the well known doctrine of estoppel (the principle which precludes a person from asserting something contrary to what is implied by a previous action or statement or by a previous pertinent judicial order)”.

The judge also addressed the Pakistan Electronic Media Regulatory Authority’s (Pemra) prohibition on the broadcasting and rebroadcasting of content pertaining to the conduct of sitting high court and Supreme Court judges on electronic media, which was criticised by the other two members of the bench.

He stated that the question was not “agitated” by any lawyer but brought under discussion by a senior member of the bench while copies of the prohibition order were also presented to the rest of the bench, the attorney general and the PMDC’s counsel by the judge’s clerk.

“Although much can be said on this question, it suffices to say that it would be otiose to discuss it here as it was neither urged by any counsel nor was it raised in the pleadings. In fact, no party was on notice to address on this question.

“Pemra was also not in attendance to present the rationale of the prohibition order. Therefore, in my view, the principle of fairness obliges us not to express a definite opinion on this question until all concerned have had an opportunity of being heard.”

The judge further said that another reason why he did not endorse the observations of the other two members of the bench was because “I hold the view that no court should try any question and also pass order thereon which is not directly and substantially in issue in a case pending before it”.

“In the case at hand, the matter in issue is whether the memorisation of the Holy Quran is a relevant criteria for the determination of the candidates for an MBBS or BDS degree. Indubitably, the above-stated second question is not related to the issue involved in this case, and thus, it cannot be brought under debate, nor can any conclusion be drawn thereon.”

He said that the appropriate order would be to allow the attorney general and the PMDC to file their respective concise statement before the next hearing.




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