ISLAMABAD: Justice Shahid Waheed of the Supreme Court has held that no court should try any question and also pass any order thereon which is not directly and substantially an issue in a case pending before it.
He said this while recording his disagreement with the two brethren judges in the suo-moto case pertaining to the grant of Additional 20 marks to Hafiz-e-Quran while admission in MBBS/BDS Degree. The order issued on Wednesday stirred controversy and debate on the Chief Justice of Pakistan’s discretionary powers to constitute benches in the suo-moto cases. Justice Waheed observed that judges could not raise objections regarding the constitution of benches, saying if they do so, they would become a complainant and it would no longer be appropriate for them to hear the case.
The three-member bench included Justice Qazi Faez Isa, Justice Amin-ud-Din Khan and Justice Shahid Waheed. It was a suo-moto case regarding the grant of Additional 20 marks to Hafiz-e-Quran while admission in MBBS/BDS Degree under Regulation 9(9) of the MBBS and BDS (Admissions, House Job and Internship) Regulations, 2018.
“I have read the order proposed in this case. I regret greatly that I find myself in disagreement with my learned brethren,” Justice Shahid Waheed started with while giving dissenting voice pertaining to the order in the case.
“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 hands, the matter in issue is whether the memorization 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.
“PMDC’s lawyer had no objection to the Supreme Court Bench”
It appears that for this reason neither the Attorney General for Pakistan nor the PMDC’s lawyer had any objection to the constitution of this Bench. 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.
s.m.c._4_2022_30mar2023 (2)For bye, judicial propriety requires that if any Judge of the Bench has any objection, the proper course for him is either to recuse himself from the Bench or to refer the matter to the Hon’ble Chief Justice with the concurrence of other Judges of the Bench so that the case is assigned to some other Bench. Two, 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. Mindful of the above classification of the orders, it is to be seen what kind of order is necessitated in this case, he added.
