SC disposes of case through which Justice Isa-led bench dominated in opposition to CJP’s powers – Pakistan
The Supreme Courtroom on Tuesday disposed of the suo motu case pertaining to the 2018 regulation of the Pakistan Medical and Dental Council (PMDC) that urged an award of 20 extra marks to candidates for memorising the Holy Quran by coronary heart to get MBBS or BDS levels.
On March 29, a three-member bench heard the identical case throughout which Justice Qazi Faez Isa and Justice Aminuddin Khan had ruled that the chief justice of Pakistan (CJP) didn’t have the ability to make particular benches or determine its members.
The apex court docket judges had stated that each one hearings primarily based on suo motu notices and instances of constitutional significance — below Article 184(3) — must be postponed till they have been legislated upon.
Nevertheless, Justice Shahid Waheed had dissented from the decision in his minority ruling, saying that judges couldn’t increase objections concerning the structure of benches as a result of in the event that they achieve this they might change into a complainant and it could not be applicable for them to listen to the case.
On March 31, a round was issued by the SC 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.
Earlier as we speak, 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 at 2pm.
Through the listening to — which lasted a complete of 5 minutes — the PMDC counsel, Afnan Kundi, contended that 20 extra marks have been awarded to college students for memorising the Holy Quran up till 2018.
“New guidelines have been formulated in 2021 and the method of awarding extra marks was dropped at an finish,” Kundi stated.
Subsequently, the court docket disposed of the case on account of it being “ineffective”.
Justice Isa’s order and its dismissal
In his 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 on Monday to pen a tersely worded letter through which he urged the Cupboard Division to recall the registrar to “forestall him from additional damaging the status and integrity of the Supreme Courtroom”.
The decide additionally sought disciplinary proceedings in opposition to the registrar, Ishrat Ali, for apparently violating the Structure and the March 29 order.
The 2-page letter, addressed to the registrar, was additionally copied to the cupboard secretary by way of the Legal professional Normal for Pakistan and Chief Justice Umar Ata Bandial.
Following the letter, the federal government, throughout a gathering of the federal cupboard, agreed to recall the companies of the registrar.
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