Justice Isa raises objection to six-member SC bench's verdict against his suo motu
Pakistan
Six-member bench was unconstitutional which renders its verdict constitutionally insignificant
ISLAMABAD (Dunya News) – Supreme Court (SC) judge Justice Qazi Faez Isa on Saturday objected to the verdict issued against him by a six-member SC bench remarking that it held no constitutional significance.
Justice Isa issued a detailed note, later taken down from the SC's website, on the Hafiz-e-Quran extra marks case wherein he wrote that no other bench was entitled to hear the appeal against the orders issued by the apex court adding that neither the formation of the so-called larger bench nor the court which heard the case was in line with the constitution.
“The six-member bench issued the verdict in haste,” he remarked.
The six-member bench was unconstitutional which rendered its verdict constitutionally insignificant, he wrote.
He went on to write that the federal government had withdrawn the services of SC registrar Ishrat Husain on April 3 but the registrar floated the government’s order by issuing a roster for the six-member bench on April 4. “The registrar had issued an unconstitutional circular on SC’s March 29 verdict,” he remarked.
The judge penned that CJP Umar Ata Bandial was also approached for an unconstitutional circular but was not responded to. “The six-member bench was formed after the circular was declared unconstitutional,” he penned further.
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Justice Isa remarked that the apex court was responsible for deciding cases in line with the constitution adding that it would be akin to breaching the judges’ code of conduct if not complied with. “The larger bench’s verdict reflects dictatorship and the constitution does not address the CJP as masters of rosters anywhere,” he wrote.
Earlier, Justice Isa had 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.
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A six-member bench, headed by Justice Ijazul Ahsan and comprising Justice Munib Akhtar, Justice Mazahar Naqvi, Justice Muhammad Ali Mazhar, Justice Ayesha Malik and Justice Hassan Azhar Rizvi, had disposed of a suo motu case about grant of additional 20 marks to a Hafiz-e-Quran student while admitting him/her to an MBBS/BDS degree programme.
Justice Isa-led Bench’s Ruling
On March 29, a three-member bench comprising Justice Qazi Qazi Faez Isa, Justice Aminuddin Khan and Justice Shahid Waheed 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 in the Supreme Court Rules 1980 regarding the discretionary powers enjoyed by the Chief Justice of Pakistan to form benches.
The three-judge bench 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 order said, “The interest of citizens therefore will be best served to postpone the hearing of this case, and all of the other cases under Article 184(3) of the Constitution till the matters are first attended to by making requisite rules in terms of Article 191 of the Constitution.”
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.
“Important matters, which arose out of Article 184(3) of the Constitution, were decided, with significant consequences on the economy, politics and on other aspects of the lives of Pakistanis,” the order said.
“With regard to Article 184(3) of the Constitution, the court held that there are three categories of cases. Firstly, when a formal application seeking enforcement of Fundamental Rights is filed. Secondly, when (suo motu) notice is taken by the Supreme Court or its judges. And, thirdly cases of immense constitutional importance and significance (which may also be those in the first and second categories). Order XXV of the rules only attends to the first category of cases."
The order further said there was no procedure prescribed for the second and third category of cases, adding that the situation was exacerbated as there was no appeal against a decision under Article 184(3) of the Constitution.
“The Constitution does not grant to the chief justice unilateral and arbitrary power to decide the above matters,” the order said. “With respect, the chief justice cannot substitute his personal wisdom with that of the Constitution,” the order noted, adding that collective determination by the chief justice and the judges of the Supreme Court could also not be assumed by an individual.
SC Registrar’s Circular
On March 31, Chief Justice of Pakistan Umar Ata Bandial set aside the observations made by the three-member bench .
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.
