Warns of ‘irreparable damage’ if credibility of judiciary is undermined n Notes decisions emanating from a courtroom overcast with the shadow of autocracy cannot displace the Constitution.

When in an individual power is concentrated, disastrous consequences invariably follow: Justice Isa.

ISLAMABAD      -     Supreme Court judge Justice Qazi Faez Isa Sat­urday said the six-mem­ber larger bench of the top court was wrong­ly constituted without having the constitution­al jurisdiction to over­ride the March 29 in­terim order wherein he and Justice Aminuddin Khan had ordered the postponement of all suo motu matters.

He said that the ver­dict of a six-member bench of the Supreme Court could not set aside an earlier order to halt suo motu pro­ceedings.

A six-judge bench last week — after a five-minute hearing — 'closed' the case that led Justice Isa to issue an order to freeze the hearings of all the sub judice suo motu notices.

On March 29, a three-member bench heard a case pertaining to the 2018 regulation of the Pakistan Medi­cal and Dental Council (PMDC) that suggest­ed an award of 20 ad­ditional marks to can­didates for memorising the Holy Quran by heart to get MBBS or BDS de­grees. Justice Isa and Justice Khan had then ruled that the chief jus­tice of Pakistan (CJP) did not have the powers 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 apex court’s 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.

On April 4, 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. In a hearing that lasted a total of five minutes, the bench disposed of the case on account of it being “ineffective”.

The judges had also recalled Justice Isa and Justice Khan’s Mar 29 order, deeming it “both without and beyond jurisdic­tion”. In a detailed note issued Saturday through the Supreme Court website on the April 4 proceedings, Justice Isa said the larger bench was “wrongly con­stituted” to hear the case. The note has since been taken off the court’s website.

“The Constitution does not confer jurisdiction on a bench or on judges of the Supreme Court (no matter how many in number) to sit in appeal over an order of the Supreme Court,” Justice Isa explained in the now deleted note, adding that thus the bench did not constitute a constitutional court, did not possess any of the abovemen­tioned jurisdictions and could not pass an order overriding the March 29 order.

“The purported ‘order’ dated April 4, 2023, cannot be catego­rised as an order of the Supreme Court; it is of no constitutional or legal effect. It would be legal­ly incorrect to refer to it as an order.” Justice Isa said that the six-member bench could not review the Mar 29 order and if review jurisdiction was in­voked then the case should have been listed for hearing before the same initial three-member bench. The judge also pointed out six “procedural irregular­ities” which he said were com­mitted in the matter:

The roster was issued for the same day, which is only done when there is an extraordinary emergency, but in the instant matter there was none The very day the case roster was is­sued the matter was also listed and after court-time No prior notice of the listing of the mat­ter was issued

Notice was not issued to the attorney-general for Pakistan as per Order XXVIIA of the Code of Civil Procedure, 1908

Notice to the attorney-gener­al had not been issued, yet the April 4 Note records that the ad­ditional attorney-general was ‘On Court’s Notice’

The counsel of PMDC was in attendance (without prior no­tice), which meant he was ver­bally or telephonically sent for, contrary to usual practice Justice Isa pointed out that the six judges were “hurriedly as­sembled” and the judge heading the bench and the next senior judge had “concluded the mat­ter within a few minutes”.

“Immediately, on the very same day, the April 4 note, com­prising of eight pages, was is­sued. If the matter had been list­ed for hearing in the ordinary course as per normal proce­dure, sufficient notice had been given, and it was properly delib­erated upon, then the four hon­ourable junior judges may have realised that what their seniors were doing did not accord with the Constitution and the law.”

Tackling the reasoning applied in the April 4 order, Justice Isa said it designated the chief jus­tice of Pakistan as the “master of rolls” but that was not a term found in the Constitution, any law or Supreme Court rules. He said the April 4 order had proceeded to rely on a prior note by Justice Akhtar that suo motu jurisdic­tion could only be invoked by the chief justice of Pakistan who was the “master of the roster”.

“With respect, the Honourable Justice Munib Akhtar’s earlier note was not a legal precedent. In any event the said reasoning is without a constitutional or le­gal foundation. The stated rule of law was not enacted pursu­ant to a law nor can it by its own self-serve itself to be catego­rised as rule of law, particularly when it contravenes the Consti­tution, which does not grant to the chief justice such powers,” Justice Isa explained.

The judge further said that suo motu notice had already been taken of the PMDC addition­al marks case and said it was thus ironic that the six-member bench had stated the Mar 29 or­der to be “both without and be­yond jurisdiction”.

“The April 4 note has no con­stitutional or legal validity as it seeks to supplant the Constitu­tion,” he added.

Justice Isa reiterated that since the six-judge gathering was “not permissible under the Constitution or under any law”, it could not have set aside the Mar 29 order.

“Decisions emanating from a courtroom overcast with the shadow of autocracy cannot dis­place the Constitution,” he not­ed. Justice Isa said that the Con­stitution defined the apex court to consist of the chief justice and Supreme Court judges, adding that the Mar 29 order had point­ed out this very same position and also that the chief justice could “not unilaterally assume all the powers of the Supreme Court”. He contended that the larger bench was “presumably constituted” when it was real­ised that the registrar’s circular was “patently unconstitution­al and illegal, and that the chief justice could not have given legal instructions to issue it”. Justice Isa said that the Constitution did not bestow “unlimited jurisdic­tion” on the apex court or chief justice. “The Constitution alone grants jurisdiction and empow­ers courts to decide cases, there­fore, if non-existing jurisdiction is assumed then the oath to act in accordance with the Constitu­tion is violated,” he argued.

Justice Isa pointed out that the chief justice was “deserving of respect but he is not a mas­ter; such servitude is also alien to Islam”. He further said that the Mar 29 order had required that rules regarding the issues it raised be made through consul­tation, adding that the consulta­tion process was mandated in the Holy Quran itself and prac­tised by the Holy Prophet (Peace Be Upon Him). “The world has also been moving away from the days when monarchs and dicta­tors wielded absolute power […] History witnesses, that when in an individual power is concen­trated, disastrous consequences invariably follow.

“Irreparable damage will be caused to the judiciary and to the people of Pakistan if the le­gitimacy, integrity and credi­bility of the judiciary is under­mined, because without it the people (who it serves) will lose their trust. The surest way for this to happen is when cases are not decided in accordance with the Constitution,” Justice Isa said.

Justice Isa also addressed the issue of Ishrat Ali, the former apex court registrar, saying that his services were withdrawn by the federal government and yet he “refuses to abide by the or­der of the federal government”.

The judge said that the regis­trar had “misdescribed” him­self as the registrar on April 4 and purported to sign and is­sue the roster for the six-mem­ber bench.

In his Mar 29 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.