Hours before the Supreme Court was set to resume hearing a case on delay to elections in Punjab and Khyber-Pakhtunkhwa, Chief Justice of Pakistan (CJP) Umar Ata Bandial issued a circular saying an earlier ruling ordering suspension of cases taken up under Article 184(3) should be “disregarded” as it was in violation of rules.
On Wednesday, in a majority 2-1 judgment, Justices Qazi Faez Isa and Aminud Din Khan had ordered the suspension of all cases taken up by invoking the suo motu powers of Article 184(3) of the Constitution until the apex court’s rules could be revised with respect to the formation of benches. Subsequently, Justice Khan had recused himself from the polls delay case, saying he could not continue to hear a case related to suo motu proceedings as a signatory to the earlier order.
“The observations made in paras 11 to 22 and 26 to 28 of the majority judgment of two to one travel beyond the lis before the Court and invokes its suo motu jurisdiction,” read the circular issued by the CJP. “The unilateral assumption of judicial power” in the ruling, the circular continued, violated a rule laid down by a five-member bench. “Such power is to be invoked by the Chief Justice on the recommendation of an Honorable 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,” it said.
“Any observation made in the said judgment, inter alia, for the fixation or otherwise of cases is to be disregarded,” it added.
There have been growing signs of a rift within the superior judiciary, with the CJP repeatedly refusing to form a full court bench to hear the polls delay case, even as the five-member bench initially formed has been whittled down to a three-member bench with the recusals of Justice Khan and Justice Jamal Khan Mandokhail. Legal experts say the issuance of the circular is “unprecedented,” noting that past practice called for such rulings to be issued in court orders, rather than through unilateral summaries.