Six judge SC bench note cannot set aside order on suo motu: Justice Isa

Supreme Court Senior Judge Justice Qazi Faez Isa said on Saturday that a six-member bench of the top court could not set aside an earlier order to stop suo motu proceedings in the top court, Aaj News reported.

A three-judge bench, headed by Justice Qazi Faez Isa, and comprising Justice Amin-ud-Din Khan and Justice Shahid Waheed on March 29 with a majority of 2 to 1 held that hearing of all the cases under Article 184(3) of the Constitution be deferred until the changes are made in the Supreme Court Rules 1980 regarding the discretionary powers of the Chief Justice of Pakistan to form benches.

The order said neither Constitution nor the rules give CJP the power to make special benches or select judges who will be on these benches. “The rules do not grant any power to Registrar or to the Chief Justice to change the judge or judges on the Bench or to reduce their number,” said the order.

The order said the matter be postponed until the framing of SC rules. With regard to article 184(3) of the Constitution, the order said that there are three categories of cases. “Firstly, when a formal application seeking enforcement of Fundamental Rights is filed.

Secondly, when (suo motu) notice is taken by the Supreme Court or its Judges. And, thirdly cases of immense constitutional importance and significance (which may also be those in the first and second category). Order XXV of the Rules only attends to the first category of cases. There is no procedure prescribed for the second and third category of cases.

However, a three-judge which announced the judgment on the Punjab elections held that they “wholly unaffected by any observations made in the majority order.”

The six-judge order said: “We are in no manner of doubt that the order dated 15.03.2023 invokes suo motu jurisdiction of this Court and is therefore, clearly violative of the principles settled in a five member judgment of this Court recorded in SMC No.4 of 2021, which 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 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.”

It appears that the order was brought to the notice of the HCJP who was pleased to observe as follows: “The observations made in paras 11 to 22 and 26 to 28 of the majority judgment of two to one travel beyond the list before the Court and invokes its suo motu jurisdiction.

In a nine-page note issued today, Justice Isa maintained that since the gathering in a court of six distinguished judges was not permissible under the Constitution or under any law, “the Supreme Court’s order dated 29 March 2023 passed in Case No 4 could not have been set aside by the 4 April Note”.

“Decisions emanating from a courtroom overcast with the shadow of autocracy cannot displace the Constitution," it added.

“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,” read the note.