Justice Isa questions bench verdict recalling his order

Supreme Court Senior Puisne Judge Justice Qazi Faez Isa has raised serious questions over the verdict of a top court’s six-member larger bench, which recalled his and Justice Aminuddin Khan's ruling that all hearings under Article 184-3 be postponed until the discretionary powers of the chief justice of Pakistan in the SC Rules to form benches, ‘fix' cases and initiate suo motu proceedings were amended.

On March 29, a special SC bench led by Justice Isa, with a two-to-one majority, ordered suspended all suo motu cases — under Article 184(3) of the Constitution — until amendments were made to the SC Rules governing the chief justice’s discretionary powers.

The special bench order came on the suo motu case related to examining the award of additional 20 marks to Hafiz-e-Quran candidates applying for enrolment to an MBBS/BDS degree.

Subsequently on April 4, a larger bench, headed by Justice Ijazul Ahsan and comprising Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Muhammad Ali Mazhar, Justice Ayesha A Malik and Justice Syed Hasan Azhar Rizvi, wrapped up the case of the Hafiz-e-Quran candidates in just five minutes as well as recalled the interim order authored by Justice Isa.

The larger bench in its verdict ruled that Justice Isa and Justice Aminuddin’s order was “clearly violative” of a five-member bench’s August 2021 order that only the chief justice could take suo motu notice.

Also read: Justice Isa’s suo motu order recalled

In a nine-page note issued on Saturday, Justice Isa maintained that as the gathering in a court of six distinguished judges was not permissible under the Constitution or under any law, “the Supreme Court’s order dated 29 March 2023 passed in Case No 4 could not have been set aside by the 4 April Note”.

“Decisions emanating from a courtroom overcast with the shadow of autocracy cannot displace the Constitution,” it added.

Justice Isa while pointing out the “procedural irregularities” committed by the six-member larger bench wrote that the roster was issued for the same day, which was only done when there was an extraordinary emergency, but in the instant matter there was none.

“The very day the case roster was issued the matter was also listed, and after court-time; No prior notice of the listing of the matter was issued; Notice was not issued to the Attorney-General ffo Pakistan as per Order XXVIIA of the Code of Civil Procedure, 1908,” the note read.

The counsel for the Pakistan Medical and Dental Council (PMDC) was in attendance (without prior notice), which meant he was verbally or telephonically sent for, contrary to usual practice, it added.

Justice Isa observed that the Constitution did not bestow unlimited jurisdiction on the SC, let alone on the CJP.

“The Constitution confers only the following jurisdictions on the Supreme Court: (1) original jurisdiction, (2) appellate jurisdiction, (3) advisory jurisdiction, (4) power to transfer cases jurisdiction, (5) review jurisdiction, (6) contempt jurisdiction and (7) appellate jurisdiction with regard to decisions of administrative courts and tribunals,” he pointed out.

Also read: SC disregards 2-judge verdict deferring suo motu cases

Justice Isa noted that the Constitution did not confer jurisdiction on a bench or on judges of the SC (no matter how many in number) to sit in an appeal over an order of the top court.

“Therefore, the so-called larger bench was wrongly constituted purportedly to hear Case No. 4. The larger bench did not constitute a (constitutional) court; it did not possess any of the above-mentioned jurisdictions and could not pass an order. The purported ‘order’ dated 4 April 2023 cannot be categorised as an order of the Supreme Court; it is of no constitutional or legal effect. It would be legally incorrect to refer to it as an order; therefore, it shall be referred to as ‘the 4 April Note’,” the judge added.

Referring to the reasoning applied to in the Note No. 4 issued by the larger bench, Justice Isa noted that it designated the CJP as the “Master of Rolls”, a term not found in the Constitution, in any law or even in the SC Rules.

“On the pretext that the chief justice is the Master of Rolls and empowered to do as he pleases, the 4 April Note proceeds to rely on an earlier note (authored by [Justice] Munib Akhtar), stating that it ‘clearly and categorically lays down the rule that the suo motu jurisdiction of this court can only and solely be invoked by the CJP,” it added.

Justice Isa pointed out that the majority order also appeared to be in violation of the well-settled rule of law, which was axiomatic, that chief justice was the “master of the roster”.

“With respect, the Hon’ble Justice Munib Akhtar’s earlier note was not a legal precedent. In any event, the said reasoning is without a constitutional or legal foundation. The stated rule of law was not enacted pursuant to a law nor can it by its own self-serve itself to be categorised as [a] rule of law, particularly when it contravenes the Constitution, which does not grant to the chief justice such powers,” Justice Isa maintained.

“The order dated 29 March 2023 had noted the lack of procedural rules with regard to cases filed or taken notice of under Article 184(3) of the Constitution. However, in Case No. 4, [the] notice under Article 184(3) of the Constitution had already been taken (with regard to the matter of grant of additional marks), ironically, in a matter in which the so-called larger bench had wrongly assumed jurisdiction,” the note read.

“The 4 April Note stated that order dated 29 March 2023 ‘was therefore both without and beyond jurisdiction’. The 4 April Note has no constitutional or legal validity as it seeks to supplant the Constitution,” the senior judge argued.

The judge further pointed out that Ishrat Ali, a federal government employee, was sent on deputation to the SC to work as its registrar.

He maintained that Ishrat Ali was “withdrawn” by the federal government vide notification dated April 3, 2023 and “directed to report to the Establishment Division with immediate effect”.

However, Justice Isa noted that Ishrat Ali refused to abide by the order of the federal government.

Also read: President Alvi returns bill limiting CJP's powers to parliament

“On 4 April 2023, Mr Ishrat Ali mis-described himself as [the] ‘Registrar’, and purported to sign and issue ‘Court Roster for Tuesday 4th April, 2023’ in Suo Motu Case No. 4/2022 (‘Case No. 4’) and further purported to constitute a ‘Larger Bench’ at 2:00 pm.’ This was stated to have been done ‘By Order of HCJ’, that is, [the] Hon’ble Chief Justice,” Justice Isa noted.

“Case No. 4 was fixed before a three-member bench on 15 March 2023 and an order was announced on 29 March 2023. Rather than complying with the order of the Supreme Court, Mr Ishrat Ali (when he was still the Registrar) did something out of the ordinary; he issued a circular, stating that any observation made in this order of the Supreme Court ‘is to be disregarded’. I wrote to Mr Ishrat Ali that his circular ‘purports to negate, undo, disobey and violate order dated 29 March 2023 of a three-member bench of the Supreme Court, passed in Suo Motu Case No. 4 of 2022’. He was also informed that, ‘The Registrar does not have the power or authority to undo a judicial order, and the Chief Justice cannot issue administrative directions with regard thereto’. The letter was also copied to to the Hon’ble Chief Justice. Till date no reply has been received to my letter,” he added.