Justice Qazi Faez Isa, senior puisne judge of the Supreme Court, on Monday called on the apex court’s registrar to withdraw the circular that disregarded his March 29 order calling for the postponement of suo motu matters.

On March 29, Justice Isa had observed that the Constitution did not grant unilateral and arbitrary power to the country’s top judge to list cases for hearing, form special benches and select judges.

He had also proposed that cases under Article 184(3) of the Constitution be postponed until amendments were made to the Supreme Court Rules 1980 regarding the chief justice of Pakistan’s (CJP) discretionary powers to form benches.

Article 184(3) of the Constitution sets out the SC’s original jurisdiction and enables it to assume jurisdiction in matters involving a question of “public importance” with reference to the “enforcement of any of the fundamental rights” of Pakistan’s citizens.

“With respect, the chief justice cannot substitute his personal wisdom with that of the Constitution,” Justice Isa said in his remarks, part of a 12-page judgement he authored.

“Collective determination by the chief justice and judges of the Supreme Court can also not be assumed by an individual, albeit the chief justice,” he said.

The very next day, however, a circular was issued by the registrar’s office, followed by one-page court order, disregarding the directives, adding that the bench had travelled beyond the case before it.

The order was issued before the SC hearing on the PTI’s plea challenging the electoral watchdog’s decision to postpone polls in Punjab till October 8.

In the letter addressed to SC Registrar Ishrat Ali, a copy of which is available with Dawn.com, Justice Isa said he was “astonished” to receive the circular in question.

“The circular purports to negate, undo, disobey and violate order dated March 29 of a three-member SC bench of the SC […]. 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,” he said.

“Needless to say, as a senior officer you are expected to know what the Constitution of the Islamic Republic of Pakistan stipulates, act in accordance therewith and abide by the decisions of the SC,” Justice Isa said.

“The circular refers to a decision of the SC (suo motu case No. 4/2021, PLD 2022 SC 306; if you had read it you would have realised that it pertained to invoking powers under Article 184(3) of the Constitution (suo motu),” he went on to say.

“However, in the subject case suo motu notice had not been taken by the bench before which it was listed for hearing on March 15. You lost sight of this obvious distinction and did not appreciate that the case cited in the circular was not applicable,” Justice Isa said in the letter.

“In your best interest, and that of the SC, you should withdraw the circular immediately, and inform all those who have been sent it,” the judge said.

“Your conduct demonstrates that you do not have the requisite competence, ability and understanding to hold the office of the registrar. Moreover, a bureaucrat holding the office of the registrar violates Article 175(3) of the Constitution, which mandates the complete separation of the judiciary from the executive.

“Like every citizen, it is also your inviolable obligation to obey the Constitution (Article 5(2) of the Constitution). Therefore, you are advised to relinquish the office of registrar immediately,” Justice Isa said.

The letter also addressed the secretaries of the Establishment Division and the Cabinet Division as well as the government through the attorney general for Pakistan.

Justice Isa called on them to immediately recall Ali to prevent him from “further damaging the reputation and integrity” of the apex court.

“And if you consider appropriate to initiate disciplinary proceedings against him in accordance with the applicable laws as he has apparently violated” the Constitution and the March 29 order, he said.

Federal cabinet decides to recall registrar

Meanwhile, a special meeting of the federal cabinet at the Prime Minister’s House took note of the registrar’s circular against Justice Isa and Justice Aminuddin Khan’s order and decided to withdraw his services.

The federal cabinet directed the registrar to report to the Establishment Division.

It also demanded President Dr Arif Alvi give his assent to the Supreme Court (Practice and Procedure) Bill 2023 “immediately so the country can get out of the constitutional and political crisis”.

Justices Isa, Masood call for SJC inquiry on fellow judge’s conduct

Separately, Justice Isa and Justice Sardar Tariq Masood penned a letter to CJP Bandial, Sindh Chief Justice Ahmed Ali Shaikh and Lahore Chief Justice Muhammad Ameer Bhatti calling for an inquiry by the Supreme Judicial Council against Justice Mazahir Ali Akbar Naqvi.

The letter said that written complaints were received from the Pakistan Bar Council alleging “misconduct and financial impropriety” by Naqvi, adding that it was the council’s duty to investigate the capacity and misconduct of a judge.

The two judges said they were waiting for CJP Bandial to convene a council meeting to consider the complaints and determine whether there was substance to them.

“We must exonerate the respondent judge and fully restore his honour or else submit our report in terms of the Constitution. To leave the respondent judge under a cloud of uncertainty undermines both his and the judiciary’s repute,” the letter reads.

It added that the people’s confidence in the judiciary’s integrity and independence “requires us to proceed without any further delay”.

Registrar’s circular

In a circular issued by the apexc court registrar, CJP Bandial had said that the observations made by Justice Isa and Justice Khan in paragraphs 11 to 22 and 26 to 28 of their judgement “travel beyond the lis before the court and invokes its suo motu jurisdiction”.

He had observed that the “unilateral assumption of judicial power in such a manner” was a violation of rules laid down by a five-member judge reported as the “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 Honourable Judge or a learned Bench of the Court on the basis of criteria laid down in Article 184(3) of the Constitution.

“The said majority judgment, therefore, disregards binding law laid down by a larger bench of the Court,” Justice Bandial had said in the circular.

He had added that any observation made in the judgement issued by Justice Isa and Justice Khan for the fixation or otherwise of cases should also be disregarded.

“Accordingly, a circular be issued by the Registrar stating the foregoing legal position for the information of all concerned,” the CJP had concluded.