Arbitrary powers: The question of pleas maintainability

In defiance of orders issued by some judges, the Supreme Court Registrar persists in deciding the maintainability of constitution petitions filed under Article 184(3) of the Constitution.

The SC registrar has consistently raised similar objections to numerous constitution petitions.

Last week, it returned a petition against the forced deportation of Afghan citizens from Pakistan and also raised objections to senior lawyer Aitzaz Ahsan's petition against enforced disappearances.

The registrar's office presented similar objections to both petitions.

In July, Justice Syed Mansoor Ali Shah declared that the Registrar Office lacked jurisdiction to decide the maintainability of a constitution petition. He emphasized that the powers to decide the justifiability of legal and factual questions raised in petitions were vested in the court.

The judge made these observations while hearing an appeal against the Registrar Office’s objections to a petition filed against key PTI leaders, including Imran Khan, for “inciting the people against the country's institutions.”

The registrar rejected the plea, citing insufficient grounds to invoke the extraordinary jurisdiction of the SC under Article 184(3) of the Constitution.

In his detailed judgment, Justice Shah noted that there was no provision in the rules empowering the registry to address such matters. He stressed that a registrar, enjoying administrative powers under the rules, cannot assume the core adjudicatory role of the court under the Constitution.

Justice Shah emphasized that the maintainability and merits of a petition were justiciable issues falling within the domain of the court. He highlighted that the registrar was meant to perform mostly administrative and ministerial functions.

In carrying out the administrative function of registering petitions, appeals, suits, and other matters under relevant laws, the registrar had been granted two powers: the power "to require any plaint, petition of appeal, petition for leave to appeal, or other matters" to be amended in accordance with practice and procedure, and the power to "decline to receive any document" presented otherwise than in accordance with the rules.

The judgment stressed that the justifiability of the legal and factual questions raised in the petitions was a matter for the court to deal with and decide.

The order explained that there were certain miscellaneous matters, essentially procedural in character, wherein the registrar could exercise the powers of the court.

However, the matters listed, particularly in sub-rules 1 to 31, did not authorize the registrar to decide on the maintainability of a constitution petition filed under Article 184(3) of the Constitution.

Justice Munib Akhtar, while hearing the chief minister's appeal against his petition challenging superior courts' judges in Gilgit-Baltistan, also held that constitutional petitions are to be registered, numbered, and listed in the court according to the procedure and practice of the court.

If, and when, notice is issued to the respondents (or they choose to voluntarily appear before the court), they will, of course, be entitled to raise all such points and objections available to them in accordance with the law, including any related to the maintainability of the petitions.

Former Sindh High Court Bar Association (SHCBA) president Salahuddin Ahmed expressed wonder as to why the SC registrar continued to reject petitions when some SC judges had already held that the office had no judicial power to decide about the maintainability of petitions.

However, recently, a three-judge committee led by CJP Qazi Faez Isa resolved that the office/registrar shall determine the maintainability of petitions under Article 184(3) of the Constitution, and the Registrar shall list such petitions in the court, provided they do not involve the interpretation of the Constitution.

If chamber appeals are filed in cases determined by the registrar to be non-maintainable, the same shall be listed for chamber hearing as per the directions of the Hon'ble Chief Justice, it said.