A newly formed six-member bench of the Supreme Court on Tuesday “recalled” the interim order issued days earlier by Justice Qazi Faez Isa and Justice Aminuddin Khan wherein they had ordered the postponement of suo motu matters, deeming the order “both without and beyond jurisdiction”.
On March 29, a three-member bench heard the same case during which Justice Qazi Faez Isa and Justice Aminuddin Khan had ruled that the chief justice of Pakistan (CJP) did not have the power to make special benches or decide its members.
The apex court judges had said that all hearings based on suo motu notices and cases of constitutional significance — under Article 184(3) — should be postponed until they were legislated upon.
However, Justice Shahid Waheed had dissented from the verdict in his minority ruling, saying that judges could not raise objections regarding the constitution of benches because if they do so they would become a complainant and it would no longer be appropriate for them to hear the case.
On March 31, a circular was issued by the SC registrar’s office, followed by a one-page court order, disregarding the directives, and adding that the bench had travelled beyond the case before it, which had prompted Justice Isa to pen a scathing letter to the registrar.
Earlier today, a six-member larger bench, headed by Justice Ijazul Ahsan and comprising Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Muhammad Ali Mazahar, Justice Ayesha Malik and Justice Syed Hasan Azhar Rizvi, was constituted to hear the case at 2pm.
During the hearing — which lasted a total of five minutes — the PMDC counsel, Afnan Kundi, contended that 20 additional marks were awarded to students for memorising the Holy Quran up until 2018.
“New rules were formulated in 2021 and the process of awarding additional marks was brought to an end,” Kundi said.
Subsequently, the court disposed of the case on account of it being “ineffective”.
The detailed court order issued later in the day, a copy of which is available with Dawn.com, said that Justice Isa and Justice Khan’s order was “clearly violative” of a five-member bench’s August 2021 order that only the chief justice could take suo motu notice.
“The majority order also appears to be in violation of the well settled rule of law, which is axiomatic, that the chief justice is the master of the roster. The order was therefore both without and beyond jurisdiction. Therefore, we are respectfully of the view that the order dated 15.03.2023 passed by two honourable members of the bench was inoperative and ineffective when made, was such at all times thereafter and continues to remain so.”
The detailed court verdict also agreed with the chief justice’s observations in the registrar’s circular.
“On perusal of the circular in question, we are of the view that the observations made by the honourable chief justice of Pakistan (HCJP) are unexceptionable and simply rectify an unwarranted assumption of jurisdiction and intrusion into, and interference with, powers that the principles laid down in the case law place firmly in the hands of the Chief Justice alone.
“We accordingly affirm the observations of the HCJP as incorporated in the circular and the directions issued therein. In view of the foregoing, the interim order dated 15.03.2023 (released on 29.03.2023) is recalled,” the order reads.
Regarding the case itself, the order said that since the PMDC had informed that the MBBS and BDS (Admissions, Examinations, House Job or Internship) Regulations, 2018 which granted the 20 additional marks were not in force and the current regulations did not allow any such marks so “no further proceedings in this suo motu case are required. The SMC is accordingly disposed of as having been infructuous. File may be consigned to the record.”
Justice Isa’s order and its dismissal
In his order, Justice Isa had proposed that cases under Article 184(3) of the Constitution be postponed until amendments were made to Supreme Court Rules 1980 regarding the CJP’s discretionary powers to form benches.
“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.
“It would be in the best interest of citizens if the hearing in the present case is postponed and of all other cases under Article 184(3) of the Constitution, till the matters noted hereinabove are first attended to by making requisite rules in terms of Article 191 of the Constitution,” Justice Isa wrote.
Referring to Article 184(3), Justice Isa explained in the latest verdict that there were three categories of cases. First, when a formal application seeking enforcement of the fundamental rights was filed; second, when suo motu notice was taken by the Supreme Court or its judges; and third, when there are cases of immense constitutional importance and significance, which may also be those in the first and second categories.
Order 25 of the Supreme Court Rules 1980 only attended to the first category of cases and there was no procedure prescribed for cases in the second and third categories, Justice Isa observed, adding that the situation was exacerbated as there was no appeal against a decision under Article 184(3).
He noted that neither the Constitution nor the rules grant the chief justice or the registrar the power to make special benches, select judges who will be on these benches and decide the cases that they will hear.
He said the Latin term suo motu — relating to an action taken by a court of its own accord, without any request by the parties involved — “does not find mention in the Constitution”.
“A practice which is not sanctioned does not supplant the Constitution, no matter the duration for which it has been practised,” Justice Isa said.
“We must remind ourselves of the oath that we take, which is to (a) act in accordance with the Constitution and the law, (b) abide by the code of conduct, (c) not let personal interest influence decisions, (d) do right by all people and (e) to preserve, protect and defend the Constitution,” Justice Isa said.
Subsequently, the SC registrar had issued a circular disregarding the verdict. In the circular, 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.
The issuance of the circular had prompted Justice Isa on Monday to pen a tersely worded letter in which he urged the Cabinet Division to recall the registrar to “prevent him from further damaging the reputation and integrity of the Supreme Court”.
The judge also sought disciplinary proceedings against the registrar, Ishrat Ali, for apparently violating the Constitution and the March 29 order.
The two-page letter, addressed to the registrar, was also copied to the cabinet secretary through the Attorney General for Pakistan and Chief Justice Umar Ata Bandial.
Following the letter, the government, during a meeting of the federal cabinet, agreed to recall the services of the registrar.