Pakistan Tehreek-e-Insaaf filed a petition last month in the Supreme Court seeking disqualification of the Prime Minister for “lying about his assets on the floor of the National Assembly.” The petition was returned by office of Registrar, rejecting it, inter alia, as “frivolous”. Is the office, never mind merits of that petition, even competent to undertake such an exercise? Does the issue of maintainability of petitions not require interpretation of the Constitution and must only be deliberated upon by the Bench and not by the office of Registrar?

The Supreme Court has delegated certain court powers to the office of Registrar, at present headed by a civil servant, that are specifically enlisted in The Supreme Court Rules, 1980 made for “regulating the practice and procedure of the Court.” Under the Supreme Court rules, the office is assigned to perform certain administrative duties such as keeping custody of records, keeping a list of all pending cases, fixing dates of hearing of appeals, petitions or other matters etc. The rules, in addition, delegate limited powers of the Court to the Registrar. The powers have been enlisted under Order V (Business in Chambers) of the rules and include, inter alia, hearing applications; for revivor or substitution, substituted service, change of Advocate-on-Record and extension of time limit for filing affidavits etc. Apart from disposing off such miscellaneous applications, specifically enumerated, the judicial functions have been reserved only for the Bench headed by the Chief Justice. The Registrar office cannot encroach beyond its proper bounds and venture to perform judicial functions as it appears to have done this time.

The office of Registrar framed five objections on the petition. One of the objections was that the petition is not maintainable in view of the Zulfiqar Mehdi case (1998 SCMR 793). The case had deliberated on the test of entertaining petitions under Article 184(3) of the Constitution. The assumption of jurisdiction under Article 184(3) has these prerequisites: There is a question of public importance; such question involves enforcement of the fundamental rights as are conferred by Chapter 1, Part II of the Constitution. By citing the said precedent in rejecting the petition, the office of Registrar, appears to be, transgressing well beyond its duties. Discussing the precedents, (and there is no discussion just a reference to case made by the Registrar); in order to apply or to distinguish them, is by no stretch an administrative function and the office in its eagerness to discourage constitutional petitions has seemingly overstepped its lawful bounds.

Two other objections were; the petitioner “has not approached any High Court for the redress[al] of his grievance…” and the petitioner has not approached “any other appropriate forum available to him under the law…” Article 184(3) does not on the plain reading go so far as to show who has the right to approach the Supreme Court nor does it say by what proceedings the Supreme Court may be so moved or if the proceedings under the said Article could only be initiated after exhausting all other forums including the High Courts. Further, rule of standing does not apply under Article 184(3). If the framers of the Constitution had intended the proceedings under Article 184(3) could only be initiated after approaching all the other forums, then they would have stated so, and absent that; how could the office of Registrar, again seemingly encroaching into judicial functions, read such a constraint in it?

Order XXV, rule 5 states “The Registrar may refuse to receive a petition on the grounds that it has not been filed in accordance with the Rules or is frivolous or contains scandalous matter....”. This rule can be levered to abuse. And it needs to be completely discarded or read down. At any rate, the office of Registrar should have restrained itself from invoking it here; or should not have invoked it in the manner that it did. It used the word “frivolous” without explaining how it arrived on that conclusion. It needed to explain both why and how the petition was frivolous on the touchstone of Article 184(3) of the Constitution. The decision should have been well-reasoned; a requirement of law, that is equally applicable to judicial as well as non-judicial orders; clearly explaining the petition did not raise question(s) of public importance nor did it pertain to the enforcement of fundamental rights or either one of the two limbs of the test were not made out. In the past, the august Court has taken suo motu notices under 184(3) of the Constitution on prices of articles of daily use, contamination of water and even on two bottles of wine– all were caught up within the purview of “public importance”. Is the Prime Minister lying about his assets on the floor of the National Assembly not a matter of public and national importance? It was for the office of Registrar to clarify this in a speaking order. And now it is for the political actors to spin that apparent inadequate application of mind, and spun they have, in the political arena

Post-2013, the Supreme Court has used its jurisdiction under 184(3) sparingly and has consciously tried to distance itself from the legacy of Chaudhry Court’s activism. In the stated policy of judicial restraint, the Court seems to have encouraged a pro-active role of office of Registrar. But that office needs to be reined in – lest it should start arrogating judicial functions. While it is great that our hon’ble judges in judgments, full court references and lectures consistently quote Robert Jackson on infallibility of the institution – but they still have judicial duties to perform; petitions to take up and decisions to author; both on merits and maintainability.