ISLAMABAD: The Supreme Court ruled that the proceeding conducted by former chief justice of Pakistan Saqib Nisar in the chamber to decide an application filed in the SC Human Rights Cell “can’t be categorised as legal proceedings”.
A three-member bench led by CJP Qazi Faez Isa and comprising Justice Athar Minallah and Justice Aminuddin Khan was hearing a complaint filed by a woman against a housing society owner during the tenure of former CJP Saqib Nisar.
A lady by the name of Zahida Javed Aslam on 13-10-2018 had written a letter to the Human Rights Cell of the Supreme Court levelling allegations against Top City owner Kanwar Moiz Khan.
As per the HR Cell report, former Chief Justice Saqib Nisar directed the Director General HR Cell to issue notices to the parties. Thereafter, different authorities and departments were activated.
Advocate Chaudhry Hafeez, representing the petitioner Kanwar Moiz, informed that the dispute between his client and Zahida had been attended to and decided.
During the hearing, the question arose whether the chief justice in the chamber can summon the parties and pass an order other than that the matter be fixed in the open court.
The bench noted that only matters of public importance involving the enforcement of fundamental rights could be attended by the chief justice directing to fix the matter in the open court. It said that the power exercised by the then chief justice was not covered in the constitution and the Supreme Court Rules, 1980.
The court sought the assistance of Additional Attorney General Aamir Rehman, former law minister Farooq H Naek, and ex-Attorney General for Pakistan Salman Aslam Butt, who were present in the courtroom regarding the matter.
They said that the chief justice could only pass an order for the fixation of a case in the court. He said the chief justice in the chamber could pass an order envisaged in the Supreme Court Rules, i.e., order pass on appeal filed against the SC Registrar Office’s order.
The bench having considered the matter said: “We are in agreement with the submission of the senior lawyers that the CJP cannot pass order in chambers, other than that the matter be fixed in the open court.”
“Therefore, the proceeding that took place in the chamber by ex-CJP, in our opinion, can’t be categorised as legal proceeding.”
Moiz Khan also filed a petition under Article 184(3) of the constitution against the Federation and the retired generals, former personnel of Inter-Service Intelligence (ISI).
He levelled serious charges against the army officers.
When the chief justice inquired from Moiz Khan’s counsel how Article 184(3) is attracted and the matter pertains to enforcement of fundamental rights. He replied that he has no remedy as the respondents are retired generals.
AAG Aamir Rehman said that the proceeding against the army personnel can be initiated if they have misused their offices.
He said the petitioner can file a petition before the Ministry of Defence, adding if it is proved that the retired army officers have misused their offices, then they can be reinstated and his trial will be initiated in the military court.
Justice Minallah directed the petitioner to approach the relevant forum. He said that the petitioner can also file a criminal case or civil suit of damages against the respondent.
The chief justice said that the nature of case under Article 184 (3) of the constitution is different from any other ordinary case, as under this Article the apex court uses power under original jurisdiction.
The court should be careful in exercising power under Article 184 (3), and it should be used in such a manner that it does not affect the fundamental rights of other parties.
The bench said that when other forums are available then those should be availed in first instances as eventually the matter will come before the apex court in appeal. The bench advised the petitioner to avail the remedy before other forum in accordance with the law and constitution and disposed of the petition.
During the proceeding, Justice Minallah observed that the apex court’s Human Rights Cell had become a source of injustice. Matters related to Article 184(3) cannot be taken up in the chamber.
He expressed concern as to why no attorney general or any senior counsel raised objections to orders issued in the chamber.
Copyright Business Recorder, 2023
Comments
Comments are closed.