ISLAMABAD: In a surprise move, a six-judge Supreme Court bench on Tuesday backed Registrar Ishrat Ali’s March 31 circular, calling for disregarding Justice Qazi Faez Isa’s direction to postpone cases instituted under Article 184(3) of the Constitution.

Citing Chief Justice of Pakistan (CJP) Umar Ata Bandial’s observations, the circular had explained that Justice Isa’s order disregarded an earlier five-judge order, stating that only the CJP could initiate suo motu cases.

“We accordingly affirm the observations of CJP as incorporated in the circular and the directions issued therein,” said an eight-page order, recalling the March 15 order which was released on March 29, where Justice Qazi Faez Isa had held that the Constitution does not grant CJP the unilateral and arbitrary power to decide how cases under Article 184(3) can be listed for hearing, how benches to hear such cases can be constituted and how judges hearing such cases are to be selected.

Headed by Justice Ijaz-ul-Ahsan, the bench consisting of Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Muhammad Ali Mazhar, Justice Ayesha A Malik and Justice Syed Hasan Azhar Rizvi had taken up a 2018 regulation of the Pakistan Medical and Dental Council (PM&DC) which suggests awarding 20 additional marks to candidates for memorising the Holy Quran.

Observers believe that what necessitated the hearing of the case by a six-judge bench was Monday’s letter by Justice Isa to the Cabinet Division secretary, asking to recall the Supreme Court registrar. Later, the cabinet had, in a special session, recalled the services of the registrar.

In addition to the six judge bench’s order, a three-judge bench headed by CJP which had taken up PTI’s petition on the Punjab elections, also explained that the present hearing was wholly unaffected by Justice Isa’s directions.

The six-judge bench held that the observations made by the CJP in the circular were unexceptionable and simply rectify an unwarranted assumption of jurisdiction and intrusion into, and interference with, powers that principles laid down in case law place firmly in the hands of CJP alone.

The judgment explained that the directions issued by the bench headed by Justice Isa had no nexus or connection, rather were totally alien to the lis before the court. That order was clearly not final and was of an interim nature, since the suo motu case was not disposed of but remained pending.

The six-judge bench said Justice Isa’s March 15 order clearly showed that it constitutes a fresh suo motu invocation of jurisdiction, relating to questions involving constitution of benches, the power of CJP as the Master of Rolls to constitute Benches.

Justice Isa’s order also appeared to be in violation of the well-settled rule of law, which is axiomatic, that CJP was the master of the roster. The order was therefore both without and beyond jurisdiction, the bench noted.

Published in Dawn, April 5th, 2023

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