Justice Qazi Faez Isa on Saturday critiqued the April 4 order of a six-member Supreme Court bench, saying the larger bench was “wrongly constituted” and did not have constitutional jurisdiction to override the March 29 interim order wherein he and Justice Aminuddin Khan had ordered the postponement of all suo motu matters.

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 power 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 today through the Supreme Court website on the April 4 proceedings and available with Dawn.com, Justice Isa said the larger bench was “wrongly constituted” to hear the case. The note has since been taken off the court’s website.

Justice Isa note by Dawndotcom on Scribd

“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.

What comprises the Supreme Court and what is its jurisdiction?

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.

Justice Isa’s order and its dismissal

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.

“The said majority judgment, therefore, disregards binding law laid down by a larger bench of the Court,” Justice Bandial had said in the circular.

He had added that any observation made in the judgement issued by Justice Isa and Justice Khan for the fixation or otherwise of cases should also be disregarded. “Accordingly, a circular be issued by the Registrar stating the foregoing legal position for the information of all concerned,” the CJP had concluded.

The issuance of the circular had prompted Justice Isa to pen a tersely worded letter in which he urged the Cabinet Division to recall the registrar to “prevent him from further damaging the reputation and integrity of the Supreme Court”.

The judge also sought disciplinary proceedings against the registrar, Ishrat Ali, for apparently violating the Constitution and the Mar 29 order.

The two-page letter, addressed to the registrar, was also copied to the cabinet secretary through the Attorney General for Pakistan and Chief Justice Umar Ata Bandial.

Following the letter, the government, during a meeting of the federal cabinet, agreed to recall the services of the registrar.