6-judge order of Apr 4 was not permissible under Constitution or law: Justice Isa

ISLAMABAD: Justice Qazi Faez Isa, senior puisne judge of the Supreme Court, said the order of six judges of the court dated April 4 was not permissible under the Constitution or under any law, and order dated 29 March 2023 passed in could not have been set aside by them.

“Decisions emanating from a courtroom overcast with the shadow of autocracy cannot displace the Constitution,” wrote Justice Faez. “Ironically, in a matter in which the so-called Larger Bench (six-judge) had wrongly assumed jurisdiction, that the order dated 29 March 2023 (of three-judge bench) “was therefore both without and beyond jurisdiction”. “The larger bench (April 4) note has no constitutional or legal validity as it seeks to supplant the Constitution.”

In his detailed note issued on Saturday on the SC Circular and the subsequent proceeding by a six-judge bench, the senior puisne judge stated 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.

CJP cannot issue administrative directions on judicial order of fellow judges: Justice Faez Isa

The SC six-judge bench, headed by Justice Ijazul Ahsan, on April 4 stated that the majority order (two judges of three member bench) also appears to be in violation of the well settled rule of law, which is axiomatic, that the chief justice is the master of the roster.

The order was therefore both without and beyond jurisdiction. “Therefore, we are respectfully of the view that the order dated 15.03.2023 passed by two members of the Bench was inoperative and ineffective when made, was such at all times thereafter and continues to remain so,” said the six-judge order.

Justice Faez wrote that the so-called Larger Bench was wrongly constituted purportedly to hear Case No 4. The Larger Bench did not constitute a (constitutional) court; it did not possess any of the jurisdictions, and could not pass an order. “The purported ‘order’ dated April 4 2023 cannot be categorized 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.’”

He questioned; “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. 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.

Justice Faez further wrote that in addition to disregarding the constitutional provisions the following procedural irregularities were also committed: (1) 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; (2) The very day the case roster was issued the matter was also listed, and after court-time; (3) No prior notice of the listing of the matter was issued; (4) Notice was not issued to the Attorney-General for Pakistan as per Order XXVIIA of the Code of Civil Procedure, 1908; (5) 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’; and (6) The counsel of PMDC was in attendance (without prior notice), which meant he was verbally or telephonically sent for, contrary to usual practice.

Justice Faez said that the six judges were hurriedly assembled on April 4, and the judge heading the bench (Justice Ijaz) and the next senior judge (Justice Muneeb) within a few minutes concluded the matter and on the same day in the evening issued 8-page note.

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 junior judges may have realized that what their seniors were doing did not accord with the Constitution and the law.

He stated that unfortunately, the six-judge bench note designates the Chief Justice of Pakistan as the ‘Master of Rolls’, a term not found in the Constitution, in any law or even in the Supreme Court Rules, 1980.

And, on the pretext that the Chief Justice is the Master of Rolls and empowered to do as he pleases the April 4 note proceeds to rely on an earlier note (authored by Justice Munib), stating that it ‘clearly and categorically lays down the rule that the suo motu jurisdiction of this Court can only and solely be invoked by the CJP.

The majority order also appears to be in violation of the well settled rule of law, which is axiomatic, that Chief Justice is the master of the roster.’ He said that Justice Munib’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 categorized as rule of law, particularly when it contravenes the Constitution, which does not grant to the Chief Justice such powers. The reasoning, with respect, is otherwise flawed too.

The order dated 29 March 2023 had noted the lack of procedural rules with regard to cases filed or taken notice of under article 184(3) of the Constitution. However, in Case No. 4 notice under Article 184(3) of the Constitution had already been taken (with regard to the matter of grant of additional marks).

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 2023 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.

On 4 April 2023, Mr. Ishrat Ali mis-described himself as ‘Registrar’, and purported to sign and issue ‘Court Roster for Tuesday 4th April, 2023’ in Suo Motu Case No. 4/2022 (‘Case No. 4’) and further purported to constitute a ‘Larger Bench’ at 2:00 p.m.’ This was stated to have been done ‘By Order of HCJ’, that is, Hon’ble Chief Justice.

Case No. 4 was fixed before a three-member Bench2 on 15 March 2023 and an order was announced on 29 March 2023. Rather than complying with the order of the Supreme Court, Mr. Ishrat Ali (when he was still the Registrar) did something out of the ordinary; he issued a Circular, 4 stating that any observation made in this order of the Supreme Court ‘is to be disregarded’. 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’.

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’. The letter was also copied to the Hon’ble Chief Justice. Till date no reply has been received to my letter.

The Constitution establishes the Supreme Court, and defines it as consisting of the Chief Justice of Pakistan and Judges of the Supreme Court. Order dated 29 March 2023 which was passed in Case No. 4 had pointed out the constitutional and legal position, and that the Chief Justice could not unilaterally assume all the powers of the Supreme Court.

The purported Larger Bench was presumably constituted when it was realized that the Circular was patently unconstitutional and illegal, and that the Chief Justice could not have given legal instructions to issue it.

The Constitution stipulates that, ‘No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.’ The Constitution does not bestow unlimited jurisdiction on the Supreme Court, let alone on its Chief Justice.

The Constitution confers only the following jurisdictions on the Supreme Court: (1) original jurisdiction, (2) appellate jurisdiction, (3) advisory jurisdiction, (4) power to transfer cases jurisdiction, (5) review jurisdiction, (6) contempt jurisdiction and (7) appellate jurisdiction with regard to decisions of administrative courts and tribunals.

To further clarify the above vital point about jurisdiction, let it be assumed that the Supreme Court conducts a murder trial, and then convicts or acquits the accused. This would be of no legal effect, because neither the Constitution nor any law bestows jurisdiction on the Supreme Court to conduct a criminal trial.

However, such a trial could be conducted by a Sessions Judge, who is two-steps below Judges of the Supreme Court. And, to cite a civil law example, a Family Judge presiding over a Family Court, can decide family law matters, a jurisdiction which does not vest in the Supreme Court.

Copyright Business Recorder, 2023