Autocratic decisions can’t displace Constitution: Justice Isa

Sohail Khan
Sunday, Apr 09, 2023

By News Desk

ISLAMABAD: Senior judge of the Supreme Court Justice Qazi Faez Isa said in a note, issued on Saturday, that “decisions emanating from a courtroom, overcast with the shadow of autocracy, cannot displace the Constitution.”

He raised serious questions over the six-member larger bench of the apex court, recalling his order passed on March 29 for postponement of suo moto cases till the amendments made to the Supreme Court Rules, 1980 regarding the discretionary powers of the chief justice of Pakistan to form benches.

“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 dated 29 March 2023 passed in Case No4 could not have been set aside by the 4 April Note,” Justice Isa held in a nine-page note.

On March 29, a three-member bench, led by Justice Qazi Faez Isa, and comprising Justice Aminuddin Khan and Justice Shahid Wahid, by majority 2-1 issued an order in a suo moto case regarding grant of 20 marks to Hafiz-e-Quran in admission to MBBS/BDS degree under Regulation 9(9) of the MBBS and BDS (Admissions, House Job and Internship) Regulations, 20181.

The bench had held that the interest of citizens, therefore, will be the best served to postpone the hearing of this case, and all of other cases under Article 184(3) of the Constitution till the matters are first attended to by making requisite rules in terms of Article 191 of the Constitution.

The court had further held that neither the Constitution nor the Rules grant to the Chief Justice or the Registrar, the power to make special benches, select judges who will be on other benches and decide the cases which they would hear.

Later, on April 4, a six-member bench of the apex court, headed by Justice Ijazul Ahsen, and comprising Justice Munib Akhtar, Justice Sayyed Mazahir Ali Akbar Naqvi, Justice Muhammad Ali Mazhar, Justice Ayesha A Malik and Justice Syed Hassan Rizvi, disposed of the case for being infructuous.

In his note, Justice Isa, however, while pointing out “procedural irregularities” committed by the six-member larger bench, said that 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.

Justice Isa further noted that the very day the case roster was issued, the matter was also listed and after court-time adding that no prior notice of the listing of the matter was issued.

Similarly, the judge further held that notice was not issued to the Attorney-General for Pakistan as per Order XXVIIA of the Code of Civil Procedure, 1908.

“The counsel for the PMDC was in attendance (without prior notice), which meant he was verbally or telephonically sent for, contrary to usual practice,” Justice Isa noted.

Referring to the issue of Registrar Supreme Court, Justice Isa said that Registrar Ishrat Ali, a federal government employee, who was sent on deputation to the Supreme Court to work as registrar, was ‘withdrawn’ by the federal government vide notification dated 3 April 20231 and ‘directed to report to the Establishment Division, with immediate effect’.

“But, Mr Ishrat Ali refuses to abide by the order of the federal government and on April 4, 2023, he misdescribed himself as ‘registrar’, and purported to sign and issue ‘Court Roster for 4th April, 2023’ in Suo Motu Case No. 4/2022 (‘Case No 4) and further purported to constitute a ‘Larger Bench’ at 2:00pm,” Justice Isa held adding that this was stated to have been done ‘By Order of HCJ’, that is, Chief Justice.

“I wrote to Mr Ishrat Ali that his Circular ‘purports to negate, undo, disobey and violate order dated 29 March 2023 of a three-member Bench of the Supreme Court, passed in Suo Motu Case No. 4 of 2022,” Justice Isa noted adding that he was also informed that, ‘The Registrar does not have the power or authority to undo a judicial order, and the Chief Justice cannot issue administrative directions with regard thereto’.

Justice Isa further held that 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.

“Therefore, the so-called larger bench was wrongly constituted purportedly to hear Case No 4”, the judge noted adding that the larger bench did not constitute a (constitutional) court; it did not possess any of the above-mentioned jurisdictions, and could not pass an order. The judge further noted that the purported ‘order’ dated 4 April 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; therefore, it shall be referred to as ‘the 4 April Note.’ Could the order dated 29 March 2023 be reviewed? Can then the 4 April Note be construed as an order reviewing order dated 29 March 2023? The answer is that the said larger bench could not do so,” the judge further held.

He asserted that if the “review jurisdiction was to be invoked, then Case No 4 would have to be listed for hearing before the same judges, who had earlier heard it on 15 March 2023, but this was not done.”

He also pointed out that the six judges were assembled in a hurry and that they concluded the matter within a few minutes.

“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 Hon’ble junior judges may have realised that what their seniors were doing did not accord with the Constitution and the law,” Justice Isa wrote.

The SC judge also noted that the CJP has been designated as the ‘Master of Rolls’, which he mentioned was a term not found in the Constitution, in any law or even in the Supreme Court Rules, 1980.

“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,” the judge mentioned.

Justice Isa also stated that “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.”

Meanwhile, the Supreme Court fixed for hearing a government plea seeking withdrawal of the curative review against Senior Puisne Judge Qazi Faez Isa.

Chief Justice of Pakistan Umar Ata Bandial will conduct an in-chamber hearing on April 10, according to the court sources. The development comes a week after the Government of Pakistan filed a plea in the SC to withdraw the curative review petition against Justice Isa.

In its petition, the government stated that it wants to withdraw the appeal filed against the judgment of the country’s top court. “The government does not want to pursue this case,” the petition read, seeking withdrawal of the case while considering the requirements of justice.

In a tweet, Prime Minister Shehbaz Sharif said that the curative review was based on the ill will to “harass and intimidate” Justice Isa at his predecessor Imran Khan’s “behest”.

The federal cabinet, in July last year, had approved the withdrawal of the curative review petition.

Separately, SC Senior Puisne Judge Justice Qazi Faez Isa’s detailed verdict in Hafiz-e-Quran additional marks case was removed from the Supreme Court of Pakistan website, after some time it was uploaded and reported in national media. The detailed verdict was uploaded in both English and Urdu languages but it was removed later on.