Six-judge SC bench overturns Justice Isa’s ruling on suo motu powers

ISLAMABAD, Apr 4 (DNA): A six-judge larger bench of Supreme Court has
overturned Justice Qazi Faez Isa’s ruling about powers of the chief
justice of Pakistan regarding suo motu notices and formation of benches.

The six-member bench was formed only hours before it conducted its first
hearing and shot down Justice Isa’s verdict without wasting any time,
saying the detailed judgement will be released later.

The larger bench was led by Justice Ijazul Ahsan, and comprised of
Justice Muneeb Akhtar, Justice Mazahir Naqvi, Justice Muhammad Ali
Mazhar and Justice Ayesha Malik.

On March 29, a three-member bench comprising Justice Qazi Faez Isa,
Justice Aminuddin Khan and Justice Shahid Waheed had issued a majority
verdict of 2-1, ordering the postponement of cases being heard under
Article 184(3) of the Constitution till the amendments made to Supreme
Court Rules 1980 regarding the discretionary powers enjoyed by the Chief
Justice of Pakistan to form benches.

The bench had issued the ruling in a suo motu case regarding the grant
of 20 marks to Hafiz-e-Quran while seeking admission to MBBS/BDS degree.
Justice Waheed wrote a dissenting note against the order, saying the
points raised and discussed in the order were not relevant to the case.

The court further held that neither the Constitution nor the rules
granted to the chief justice or the registrar, the power to make special
benches, select judges who will be on other benches and decide the cases
that they will hear.

On March 31, Chief Justice of Pakistan Umar Ata Bandial set aside the
observations made by the three-member bench and SC Registrar Ishrat Ali
had issued a circular, stating: “With respect to the said order the HCJ
has been pleased to observe as under:- The observations made in paras 11
to 22 and 26 to 28 of the majority judgment of two to one travel beyond
the list before the Court and invokes its suo motu jurisdiction”.

“The unilateral assumption of judicial power in such a manner violates
the rule laid down by a 5 Member judgment or this Court reported as
Enforcement of Fundamental Rights with regard to Independence of
Press/Media (PLD 2022 SC 306).”

“Such power is to be invoked by the Chief Justice on the recommendation
of an Hon’ble Judge or a learned Bench of the Court on the basis of
criteria laid down in Article 184(3) of the Constitution,” reads the
circular. It added that the three-judge bench’s majority judgment
“therefore disregards binding law laid down by a larger bench of the
Court”.

“Any observation made in the said judgment, inter alia, for the fixation
or otherwise of cases is to be disregarded. Accordingly, a circular be
issued by the Registrar slating the foregoing legal position for the
information of all concerned,” it concluded.

On April 3, the federal cabinet approved the withdrawal of the services
of Registrar Supreme Court Ishrat Ali in its special sitting. Secretary
Establishment division also issued a notification in this regard.

The development comes after Justice Isa challenged the authority of the
registrar of the apex court who, he said, had no right to annul a
judicial order.

In a letter written to the registrar of the Supreme Court, Justice Isa
said the chief justice of Pakistan also could not issue any
administrative order against a judicial order, and that the registrar’s
circular of March 31 was a violation of the judgement of the
three-member bench of the Supreme Court.

Justice Isa further wrote that the registrar should be aware of his
constitutional responsibility as a senior officer, and that if he knew
that the case in question was heard under suo motu No 4/2022 Article
184/3, he should not have issued the circular. He also advised Registrar
Ishrat Ali to leave the charge of the post.