ISLAMABAD: Two of the Supreme Court’s senior-most judges, Justice Qazi Faez Isa and Justice Sardar Tariq Masood on Thursday expressed serious reservations over the nine-member bench hearing petitions filed by former CJP Jawad S Khawaja and others against the trial of alleged May 9 rioters in military courts.
However, both judges categorically stated that they were not recusing themselves from the proceedings, but refused to sit in the larger bench until the verdict on the Supreme Court (Practice and Procedure) Act 2023 was announced.
Subsequently, Chief Justice Umar Ata Bandial, who was heading the proceedings trimmed the bench down to seven members, who are scheduled to preside over the hearing at 1:30 pm.
Notably, the apex court has adjourned for an indefinite time the hearing of petitions filed against the Supreme Court (Practice and Procedure) Act, 2023—a piece of legislation that seeks to curtail the powers of the chief justice of Pakistan (CJP).
The court had put off the hearing after Attorney General for Pakistan (AGP) Mansoor Awan had told the top judge that the government wanted to harmonize two pieces of legislation related to the apex court— the Supreme Court (Practice and Procedure) Act, 2023 and the Supreme Court (Review of Judgements and Orders) Act, 2023 but could not do that so far.
During the outset of the hearing today, Justice Isa shared his observations that “according to the SC Practice and Procedures law, the benches are supposed to be constituted through a meeting”.
Justice Isa said he was “shocked, hurt and deeply concerned” after he top court’s registrar, Ishrat Ali on CJ Bandial’s orders had “disregarded” a judgment authored by him ordering the postponement of all suo motu cases until amendments in the SC rules about the constitution of special benches.
Notably, the order, penned by Justice Isa, had mentioned: “The Supreme Court Rules, 1980 (the Rules) neither permit nor envisage special benches. However, a Special Bench comprising of three Judges was constituted to hear this case.”
The majority order had said the top court comprises the CJP and all judges.
“The Constitution did not grant the Chief Justice unilateral and arbitrary power to decide the above matters. With respect, the Chief Justice cannot substitute his personal wisdom with that of the Constitution,” the order had stated.
Later, the SC registrar said that the order violated the rules laid down by a five-member judgement. This was challenged by Justice Isa, who had maintained that the registrar was in fact in violation of the constitution.
During the proceedings today, Justice Isa also lamented the six-member bench’s decision to recall the interim order and, in particular, the “taking down” of a note from the SC’s official website he had written expressing his reservations over the said verdict.
“Issuance of circular by Registrar Supreme Court shows the power of SC,” Justice Isa said in the court today.
Justice Isa also observed that “an inquiry commission was formed which was prevented from working further by a five-member bench.”
“But,” he said, “the inquiry commission was not served any notices nor was it asked to submit any explanations”.
Justice Isa then brought to the court’s attention the fact that it was also during this period that CJP Bandial had formed an eight-judge larger bench to review the Supreme Court (Practice and Procedure) Act 2023.
Many legal analysts have said that CJP included like-minded judges in the bench, which suspended the law which sought to regulate the CJP’s discretionary powers about the composition of benches and listing of cases
It is also interesting to note that since the enactment of the SC Practice and Procedure Act 2023, Justice Isa has not been hearing cases and is only doing chamber work. When CJP Bandial wrote a note to Justice Isa to know about his availability for a bench, Justice Isa explained why he is not sitting in the bench.
Today Isa went on to express his “surprise” over how the “cause list stated that the SC procedures law has been blocked after only having granted “the status of a bill”.
“Until and unless a verdict on the Practice and Procedures law is announced, I cannot be a part of this bench,” he said.
Justice Masood seconded Justice Isa’s reservations questioning that “should the law be deemed ‘correct’, then what would happen to the appeals on this case?”
“Until a verdict on the law does not come, I do not accept this bench as a court,” Justice Isa said.
Subsequently, the chief justice summoned AGP and petitioners’ counsels into his chamber.
Later, it was announced that a seven-member bench will continue hearing the case this afternoon.