ISLAMABAD: The Supreme Court ruled on Thursday that the court’s registrar does not enjoy any power under the rules to decide about the maintainability of a petition or an appeal.
“The question of maintainability of a petition or an appeal is a justiciable issue that calls for adjudication and thus, it’s solely the prerogative of the court in exercise of its judicial power,” observed Justice Syed Mansoor Ali Shah in a four-page order.
The order came after a chamber appeal instituted by Muhammad Ahsan Abid, whose petitions against two sitting ministers — one federal and the other provincial — were returned by the registrar on March 22 last year, when the PTI was in power.
The two were: federal industries minister Makhdoom Khusro Bakhtiar and Punjab finance minister Makhdoom Hashim Jawan Bakht.
Justice Shah ordered the court’s office to fix the main appeals — seeking disqualification of members of the national and provincial assemblies on grounds of alleged concealment of their assets — for an urgent hearing by the apex court.
The main petitions, filed under Article 63A(5) of the Constitution, were returned by the court office for not being entertainable on the grounds that an appeal under Article 63A(5) can only be filed against a declaration by the Election Commission of Pakistan (ECP) regarding defection of a member of parliament or a provincial assembly.
Justice Shah explained that under Article 191 of the Constitution, the Supreme Court may make rules regulating the practice and procedure of the court. These rules simply regulate the practice and procedure of the court and are thus merely administrative in character.
The rules empower the registrar to ensure that the form and presentation of petitions or appeals are in order.
However, there is one exception in the rules under which the registrar has the power of a court in deciding certain applications in pending cases.
But this power, Justice Mansoor Ali Shah added, appears to be procedural in nature and prima facie does not impinge upon the apex court’s judicial power to decide upon substantive justiciable issues thrown up by petitions or appeals.
In the cases under consideration, Justice Shah observed, the registrar had decided that the appeals were not maintainable under Article 63A(5). But the registrar does not have the power to decide that a petition is maintainable or not, the judge stressed.
Even a judge hearing an administrative appeal against an administrative order of the registrar cannot take a decision about maintainability, Justice Shah added.
But Order XVII Rule 5 of the court’s rules empowers the registrar to refuse to admit a petition if it is frivolous, the judge emphasised.
A frivolous petition within the meaning of this rule, the order said, was limited to its form and presentation and no more. A petition whose form and presentation falls short in material particulars or which fails to refer to any provision of the Constitution, the law or the rules under which it was purportedly filed, will be frivolous, it added.
In such a case, the registrar can refuse to receive a petition unless the petitioner improves the form and presentation of the petition. The rule, however, does not vest judicial power in the registrar to adjudicate the justiciable issue of maintainability of a petition or appeal on the ground that it is frivolous, the order clarified.
Even if a petition or appeal was prima facie non-maintainable under the Constitution, a law or rules, the question of maintainability under these provisions was to be adjudicated by the court on the judicial side and not by the registrar on the administrative side, the order said.
Published in Dawn, August 19th, 2022