Justice Isa counts ‘procedural irregularities’ in Supreme Court docket

Warns of ‘irreparable damage’ if credibility of judiciary is undermined n Notes selections emanating from a courtroom overcast with the shadow of autocracy can’t displace the Structure.

When in a person energy is concentrated, disastrous penalties invariably comply with: Justice Isa.

ISLAMABAD      –     Supreme Court docket decide Justice Qazi Faez Isa Sat­urday stated the six-mem­ber bigger bench of the highest court docket was incorrect­ly constituted with out having the structure­al jurisdiction to over­experience the March 29 in­terim order whereby he and Justice Aminuddin Khan had ordered the postponement of all suo motu issues.

He stated that the ver­dict of a six-member bench of the Supreme Court docket couldn’t put aside an earlier order to halt suo motu professional­ceedings.

A six-judge bench final week — after a five-minute listening to — ‘closed’ the case that led Justice Isa to problem an order to freeze the hearings of all of 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 counsel­ed an award of 20 advert­ditional marks to can­didates for memorising the Holy Quran by coronary heart to get MBBS or BDS de­grees. Justice Isa and Justice Khan had then dominated that the chief jus­tice of Pakistan (CJP) didn’t have the powers to make particular benches

or resolve its members.

The apex court docket judges had stated that each one hearings based mostly on suo motu notices and instances of constitutional significance — below Article 184(3) — must be postponed till they had been legislated upon.

Nonetheless, Justice Shahid Wa­heed had dissented from the decision in his minority ruling, saying that judges couldn’t elevate objections concerning the structure of benches as a result of in the event that they accomplish that they’d turn into a complainant and it will not be applicable for them to listen to the case.

On March 31, a round was issued by the apex court docket’s regis­trar’s workplace, adopted by a one-page court docket order, disregarding the directives, and including that the bench had travelled past the case earlier than it, which had prompted Justice Isa to pen a scathing letter to the registrar.

On April 4, a six-member bigger 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 listen to the case. In a listening to that lasted a complete of 5 minutes, the bench disposed of the case on account of it being “ineffective”.

The judges had additionally recalled Justice Isa and Justice Khan’s Mar 29 order, deeming it “both without and beyond jurisdic­tion”. In an in depth observe issued Saturday by means of the Supreme Court docket web site on the April Four proceedings, Justice Isa stated the bigger bench was “wrongly con­stituted” to listen to the case. The observe has since been taken off the court docket’s web site.

“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 defined within the now deleted observe, including that thus the bench didn’t represent a constitutional court docket, didn’t possess any of the abovemen­tioned jurisdictions and couldn’t cross 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 stated that the six-member bench couldn’t overview the Mar 29 order and if overview jurisdiction was in­voked then the case ought to have been listed for listening to earlier than the identical preliminary three-member bench. The decide additionally identified six “procedural irregular­ities” which he stated had been com­mitted within the matter:

The roster was issued for a similar day, which is barely executed when there’s a unprecedented emergency, however within the immediate matter there was none The very day the case roster was is­sued the matter was additionally listed and after court-time No prior discover of the itemizing of the mat­ter was issued

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

Discover to the attorney-gener­al had not been issued, but the April Four Observe data that the advert­ditional attorney-general was ‘On Court’s Discover’

The counsel of PMDC was in attendance (with out prior no­tice), which meant he was ver­bally or telephonically despatched for, opposite to ordinary follow Justice Isa identified that the six judges had been “hurriedly as­sembled” and the decide heading the bench and the following senior decide 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 utilized within the April Four order, Justice Isa stated it designated the chief jus­tice of Pakistan because the “master of rolls” however that was not a time period discovered within the Structure, any regulation or Supreme Court docket guidelines. He stated the April Four order had proceeded to depend on a previous observe by Justice Akhtar that suo motu jurisdic­tion might solely 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 defined.

The decide additional stated that suo motu discover had already been taken of the PMDC addition­al marks case and stated it was thus ironic that the six-member bench had acknowledged 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 because the six-judge gathering was “not permissible under the Constitution or under any law”, it couldn’t have put aside the Mar 29 order.

“Decisions emanating from a courtroom overcast with the shadow of autocracy cannot dis­place the Constitution,” he not­ed. Justice Isa stated that the Con­stitution outlined the apex court docket to encompass the chief justice and Supreme Court docket judges, including that the Mar 29 order had level­ed out this exact same place and likewise that the chief justice might “not unilaterally assume all the powers of the Supreme Court”. He contended that the bigger bench was “presumably constituted” when it was actual­ised that the registrar’s round was “patently unconstitution­al and illegal, and that the chief justice could not have given legal instructions to issue it”. Justice Isa stated that the Structure didn’t bestow “unlimited jurisdic­tion” on the apex court docket 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 identified that the chief justice was “deserving of respect but he is not a mas­ter; such servitude is also alien to Islam”. He additional stated that the Mar 29 order had required that guidelines concerning the problems it raised be made by means of consul­tation, including that the consulta­tion course of was mandated within the Holy Quran itself and prac­tised by the Holy Prophet (Peace Be Upon Him). “The world has additionally been transferring away from the times when monarchs and dicta­tors wielded absolute energy […] Historical past witnesses, that when in a person energy is concen­trated, disastrous penalties invariably comply with.

“Irreparable injury will probably be induced to the judiciary and to the folks of Pakistan if the le­gitimacy, integrity and credi­bility of the judiciary is below­mined, as a result of with out it the folks (who it serves) will lose their belief. The surest method for this to occur is when instances aren’t determined in accordance with the Structure,” Justice Isa stated.

Justice Isa additionally addressed the problem of Ishrat Ali, the previous apex court docket registrar, saying that his companies had been withdrawn by the federal authorities and but he “refuses to abide by the or­der of the federal government”.

The decide stated that the regis­trar had “misdescribed” him­self because the registrar on April Four and presupposed to signal and is­sue the roster for the six-mem­ber bench.

In his Mar 29 order, Justice Isa had proposed that instances below Article 184(3) of the Constitu­tion be postponed till amend­ments had been made to Supreme Court docket Guidelines 1980 concerning the CJP’s discretionary powers to kind benches.

“With respect, the Chief Jus­tice cannot substitute his per­sonal wisdom with that of the Constitution,” Justice Isa stated in his remarks, a 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 stated.

“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 defined within the lat­est verdict that there have been three classes of instances. First, when a proper software looking for en­forcement of the basic rights was filed; second, when suo motu discover was taken by the Supreme Court docket or its judg­es; and third, when there are instances of immense structure­al significance and significance, which can even be these within the first and second classes.

Order 25 of the Supreme Court docket Guidelines 1980 solely attended to the primary class of instances and there was no process pre­scribed for instances within the second and third classes, Justice Isa noticed, including that the situ­ation was exacerbated as there was no attraction in opposition to a deci­sion below Article 184(3).

He famous that neither the Con­stitution nor the principles grant the chief justice or the registrar the ability to make particular bench­es, choose judges who will probably be on these benches and resolve the instances that they are going to hear.

He stated the Latin time period suo motu — regarding an motion taken by a court docket of its personal ac­wire, with none request by the events concerned — “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 stated.

“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 stated.

Subsequently, the SC regis­trar had issued a round disre­garding the decision. Within the circu­lar, CJP Bandial had stated 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 noticed that the “uni­lateral assumption of judicial power in such a manner” was a violation of guidelines laid down by a five-member decide reported because the “Enforcement of Fundamen­tal Rights with regard to Inde­pendence of Press/Media (PLD 2022 SC 306)”.

“Such energy is to be invoked by the chief justice on the rec­ommendation of an Honour­in a position Decide or a discovered Bench of the Court docket on the premise of crite­ria laid down in Article 184(3) of the Structure.