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

Justice Qazi Faez Isa of the Supreme Court said on Monday that the Chief Justice of Pakistan (CJP) Umar Ata Bandial has no power to issue administrative directions on a judicial order passed by fellow judges of the apex court, Aaj News reported.

In a letter addressed to the Supreme Court’s Registrar, Justice Faez Isa said that the circular issued on March 31 by his office was against the top court’s three-member bench led by him.

“Needless to say, as a senior officer you are expected to know what the Constitution of Pakistan stipulates, act in accordance therewith and abide by the decisions of the Supreme Court (article 189 of the Constitution.),” the letter read.

Justice Isa, the seniormost judge of the SC after the Chief Justice, noted that the SC Registrar was unfit to hold the office, and advised him to relinquish the post immediately.

“Your conduct demonstrates that you do not have requisite competence, ability and understanding to hold the office of the Registrar. Moreover, a bureaucrat holding the office of the Registrar violates article 175(3) of the Constitution, which mandates the complete separation of the Judiciary from the Executive. […] Therefore, you are advised to relinquish the office of the Registrar immediately.”

The development comes days after CJP Bandial turned down a judgement issued by Justice Qazi Faez Isa and Justice Aminuddin Khan in which they called for the delay of suo motu matters until amendments were made to Supreme Court Rules 1980.

The two judges, while hearing a petition about granting 20 marks to Hafiz students, ruled that the Constitution did not grant unilateral and arbitrary power to the chief justice of Pakistan (CJP) to list cases for hearing, form special benches and select judges.

“With respect, the chief justice cannot substitute his personal wisdom with that of the Constitution,” Justice Isa had said.

In his circular issued on Friday, CJP Bandial noted that the observations made by the majority judgment in paras 11 to 22 and 26 to 28 were beyond the matter fixed before the court and “invokes its suo motu jurisdiction”.

The circular noted that the “unilateral assumption of judicial power” in such a manner violated the rule laid down by a five-member judgment.

“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,” read the circular.

“Any observations made in the said judgment, inter alia, for the fixation or otherwise of cases is to be disregarded. Accordingly, a circular be issued by the Registrar stating the foregoing legal position for the information of all concerned,” concluded the circular.

The government, on the other hand, tried to use this judgment of Justice Faez Isa in its favour and requested the Supreme Court to adjourn the hearing till the rules of 184/3 are finalised.

However, the CJP clarified that no decision had been withdrawn on the basis of the circular.

Meanwhile, Justice Ijazul Ahsan asked how they could adjourn the hearing when the rules were clear about constitutional petitions.