ISLAMABAD: The chasm in the Supreme Court continued to grow on Saturday, as a judicial note penned by senior puisne judge Qazi Faez Isa, said that a six-member bench that overruled his order regarding a freeze on suo motu proceedings did not “constitute a constitutional court nor possessed with any jurisdiction”.

On April 4, the six-judge bench affirmed the registrar’s circular dated March 31 to disregard Justice Isa’s direction for putting a halt on cases under Article 184(3) of the Constitution. The order of the larger bench followed a circular by the SC registrar and validated the contents of the circular. In light of the circular issued by the registrar on March 31, Justice Isa had asked the Cabinet Division to recall his services. Subsequently, the services of the registrar were recalled.

In addition to the six-judge bench order, a three-member bench headed by the chief justice, while hearing a case regarding the polls delay under Article 184(3), observed the hearing was wholly unaffected by Justice Isa’s directions. In a nine-page judicial note, which was initially uploaded but later removed from the court’s official website, Justice Isa observed that since the gathering in a court of six distinguished judges was not permissible under the Constitution or under any law, the Supreme Court’s order of March 29 — Justice Isa’s order — could not have been set aside by the registrar’s note.

“Decisions emanating from a courtroom overcast with the shadow of autocracy cannot displace the Constitution,” Justice Isa observed and also pointed out procedural irregularities in constituting the bench. It said a roster was issued for the same day — a procedure only followed when there was an extraordinary emergency, but in the present case there was none.

Second senior-most SC judge says six-member bench verdict overruling his order ‘without constitutional validity’

The case roster was also issued the same day and the matter was also listed that too after court time; besides no prior notice of the listing of the matter was issued whereas no notice was issued to the attorney general of Pakistan as per Order XXVIIA of the Code of Civil Procedure.

The six-member bench’s order records that the AGP was on court’s notice and the counsel of PMDC was also in attendance without prior notice, which meant he was verbally or telephonically sent for, contrary to usual practice, the judge added.

‘Constitutional deviations’

The federal court’s decision enabled future dictators to overthrow civilian governments, Justice Isa observed. Regretfully more than once, the CJP and judges of the Supreme Court facilitated dictators and the country with the largest Muslim population broke apart because constitutional deviations were justified, Justice Isa regretted.

The six-judge order designates the CJP as the ‘Master of Rolls’ — a term not found in the Constitution, in any law, or even in the Supreme Court Rules 1980, Justice Isa said in his note. The SC judge added that the April 4 order relied on an earlier note authored by Justice Munib Akhtar which stated that it “clearly and categorically lays down the rule that suo motu jurisdiction of the Supreme Court can only and solely be invoked by the CJP”.

Justice Isa observed that the majority order also appears to be in violation of the well-settled rule of law which is axiomatic that the CJP was the master of the roster.

“With respect, Justice Munib Akhtar’s earlier note was not a legal precedent. In any event, the said reasoning is without a constitutional or legal foundation,” he observed, adding that the stated rule of law was not enacted pursuant to law nor can it by its own be categorised as rule of law, particularly when it contravenes the Constitution, which does not grant the CJP such powers.

The April 4 reasoning is otherwise flawed too, Justice Isa said, adding ironically, in a matter in which the so-called larger bench had wrongly assumed jurisdiction, the April 4 note had no constitutional or legal validity to hold that March 29 order (Justice Isa order) was without and beyond jurisdiction.

Published in Dawn, April 9th, 2023