The Supreme Court of Pakistan has issued a circular disregarding a judgment passed by Justice Qazi Faez Isa that ordered suspending suo motu cases until amendments are made in the Supreme Court Rules 1980, which govern the discretionary powers of the chief justice to form benches.
In the circular, Chief Justice of Pakistan Umar Ata Bandial stated that the majority judgment in paras 11 to 22 and 26 to 28 was beyond the matter fixed before the Court and invoked its suo motu jurisdiction.
The circular was issued just hours before a four-member bench was set to hear the Punjab and Khyber Pakhtunkhwa election delay case. The circular noted that the “unilateral assumption of judicial power” in such a manner violated the rule laid down by a five-member judgment.
The Chief Justice should invoke the power to form benches on the recommendation of an Honourable Judge or a learned Bench of the Court based on criteria laid down in Article 184(3) of the Constitution. The majority judgment disregards binding law laid down by a larger bench of the Court. Accordingly, any observation made in the judgment for the fixation or otherwise of cases is to be disregarded.
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The special Supreme Court bench order that was suspended under the judgment related to examining the award of an additional 20 marks to Hafiz-e-Quran candidates applying for enrollment into an MBBS/BDS degree under Article 184(3) of the Constitution. Justice Qazi Faez Isa led the bench, which comprised Justice Amin-ud-Din Khan and Justice Shahid Waheed.
The Chief Justice of Pakistan had formed a three-member special bench to hear the case, but Justice Isa objected to the constitution of the bench. Justice Waheed raised objections and said that “the points raised and discussed in the order were not subject to the case.” The order penned by Justice Isa stated that “the Supreme Court Rules, 1980 (the Rules) neither permit nor envisage special benches.
A special Bench comprising of three Judges’ was constituted to hear this case.” The majority order further said that the Supreme Court comprises the CJP and all judges. The Constitution does not grant the Chief Justice unilateral and arbitrary power to decide the above matters. Collective determination by the chief justice and the judges of the Supreme Court can also not be assumed by an individual, albeit the chief justice.
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