ISLAMABAD - Setting aside objections of the registrar office, Chief Justice Mian Saqib Nisar has allowed a petition challenging the appointment of Justice Qazi Faez Isa as Chief Justice of Balochistan High Court and later his elevation to the Supreme Court.
The chief justice has ordered the petitioner to argue on the maintainability of the petition.
It is not yet clear when the petition will be taken up, however, it is the discretion of the chief justice to constitute a bench, headed either by himself or any other judge, to hear the petition pertaining to the appointment of Supreme Court judge Justice Isa as Chief Justice of BHC and his elevation to the apex court.
On January 1, 2016, advocate Riaz Hanif Rahi had filed a petition with the top court under Article 184 (3) stating that both the appointments were made without following the process.
On March 14, 2016, the Supreme Court Registrar, while citing a judgment of the Supreme Court, had raised the objection to the petition stating that the petitioner had not sought enforcement of the fundamental rights guaranteed under Article 184 (3) of the Constitution nor he approached any appropriate forum available to him.
The registrar had further said that the petitioner did also not provide any justification for not approaching an appropriate forum before turning to the apex court.
Referring to Order XVII Rule 5 of the Supreme Court Rules 1980, the registrar had stated that the petition, prima facie, appeared to be frivolous.
According to Order XVII Rule 5, the registrar “may refuse to receive a petition on the grounds that it has not been filed in accordance with rules or is frivolous or contains ‘scandalous matter”. But on such refusal, the petitioner may appeal to judge in chambers within 14 days of rejection of the petition by the registrar office.
The registrar had also said that the petitioner had not fulfilled the requirements of Rule 6 of Order XXV of the Supreme Court Rules 1980.
According to Rule 6 of Order XXV, an application shall be accompanied by an affidavit verifying the facts relied on and whether the application was filed in the high court concerned for the same relief.
The rules are very clear acknowledging the powers of the registrar to return any petition filed under Article 184(3) on the grounds that “it does not fall in the original jurisdiction of the Supreme Court”.
SC Rules give powers to the registrar to examine if the case filed is genuine or not. And the registrar office works like a filter so that frivolous petitions do not pile up.
But Rule 3 provides the litigant an opportunity to challenge the registrar office order before a judge. After rejection from the registrar office, advocate Rahi challenged the objections under Order V Rule 3 and argued before the chief justice in his chamber on March 12 contending that the registrar was not empowered to decide whether or not a petition was entertainable under Article 184 (3).
Following the arguments, the chief justice overruled the objections of the registrar and allowed it for hearing.
“Let the constitution petition be numbered and fixed before the court whereby question of maintainability shall be decided,” said the chief justice in his order.
Advocate Rahi will argue on the maintainability of the petition under Article 184 (3) of the Constitution.
Meanwhile, the legal community in Balochistan is considering convening a lawyers’ convention on the issue, said Balochistan Bar Council member Munir Kakar while talking to The Nation.
Observing the ongoing situation closely, the lawyers from Balochistan will announce their future course whenever the case is fixed for the hearing, he said.
Kakar said that entertaining the matter after a hiatus of two years was malafide and termed it a ‘conspiracy’ against the smaller province.
“Taking up the petition after two years means that the Supreme Court itself does not accept independent judges,” Kakar said adding that Justice Isa had given bold observations in the Quetta commission case, the sit-in case as well as his recent observations regarding the Panama Papers verdict.
“Provincial bars have serious reservations over the development and they want to communicate their concerns to the Supreme Court,” Kakar said.
If the top court is convinced that the instant petition is maintainable then it will issue notices to respondents seeking their replies and arguments.
The petitioner has cited the federation, Justice Isa, former Balochistan chief minister Aslam Raisani, ex-Balochistan speaker/acting Aslam Bhootani and ex-Balochistan governor Nawab Zulfiqar as respondents.
The petitioner has further stated that the notification of appointment of Justice Isa was issued in haste by the acting governor on his last day in the office without seeking advice from the chief minister.
The petitioner has contended that Justice Isa was subsequently appointed as judge of the Supreme Court on September 1, 2014, on the basis of his experience as the judge of the high court.
The petition has stated that the appointment of Justice Isa as chief justice BHC in 2009 and judge of the apex court in 2014 has violated the rights guaranteed under Article 2-A, 4, 9, 25 of the Constitution.
The petitioner has prayed to the top court to declare the notifications of the appointment of Justice Isa as chief justice BHC and as judge of Supreme Court invalid, unconstitutional, illegal, without lawful authority and of no legal effect.
SC will take up petition against Justice Isa