Senior most Supreme Court judge Justice Faez Isa says he is perplexed over Chief Justice of Pakistan Justice Umar Ata Bandial’s decision to hear the presidential reference for interpretation of Article 63A together with the Supreme Court Bar Association’s (SCBA) petition over the no-confidence motion.
The government filed the reference for Article 63A’s interpretation on Monday. However, while conducting a hearing on the SCBA’s plea on Saturday related to public gatherings of the opposition and the government in the federal capital ahead of the no-confidence motion against Prime Minister Imran Khan, the chief justice had hinted that he would hear the presidential reference along with the plea of the SCBA simultaneously.
In a three-page letter to the top judge, dated March 22, Justice Isa has questioned multiple legal aspects along with formation of a larger bench “without inclusion of senior-most judges”.
“On 19 March 2022, a two-member bench headed by yourself and an hon’ble judge 8 in seniority, heard CP No. 2/2022 in Court on a Saturday, despite the filing of the petition on Thursday. On the said date it was ordered that CP No. 2/2022 be heard ‘along with a Reference, if any, that is filed under Article 186 of the Constitution and the petition and the proposed reference were ordered to be fixed together for hearing. I am perplexed as to how a matter which had not been filed was ordered to be fixed for hearing,” the letter said.
Justice Isa argued that since the SCBA’s plea was filed under Article 184(3) of the Constitution, “an order” is supposed to be made on it instantly and it cannot be fixed for hearing on another day.
Moreover, he complained that the plea “cannot be simultaneously heard” with the presidential reference, which are filed under Article 186.
The third matter which Justice Isa objected to was that a “good practice” by a former chief justice – that made it the top judge’s discretion to constitute benches on the basis of seniority to hear important cases – has been disregarded as the judges made part of the larger bench stand 4th, 8th, and 13th in the line of seniority.
He regretted that there was no discernible criterion in the constitution of the present bench and said that this was the “most troubling part” as it gave rise to “unnecessary and avoidable misgivings.”
A copy of the letter has also been sent to Attorney General for Pakistan (AGP) Khalid Jawed Khan and Supreme Court Bar Association (SCBA) President Muhammad Ahsan Bhoon along with all advocate generals and SC judges.
Justice Isa took exception to the inclusion of the judges who are 4th, 8th and 13th on the seniority list to the bench “by discarding a good practice of a predecessor of yours, who had structured the chief justice’s discretion by constituting benches comprising of the senior-most judges when cases involving important constitutional questions were to be heard.”
Justice Isa said Article 191 of the Constitution stipulates that, ‘Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court.’
“The Supreme Court Rules, 1980 (‘the Rules} have been enacted. Order XI of the Rules attends to the Constitution of Benches, which power, like every other power and discretion, the manner of exercise of which is not specified, must, as stipulated by law, be ‘exercised reasonably, fairly, justly and for the advancement of the purposes of the enactment and in exercising discretion ‘give reasons.”
Justice Isa also objected to the appointment of a civil servant as SC Registrar.
“I have also repeatedly objected to, and in writing, that a bureaucrat, imported from the Prime Minister’s Secretariat, continues as the Registrar of the Supreme Court. It is widely perceived, that he determines which cases are fixed, when and before whom, and which are to be forgotten. A Registrar cannot be a person borrowed/deputed from the Executive.”
“In my opinion, the Registrar’s appointment is in clear violation of the Constitution, which mandates the complete independence of the judiciary and its separation from the executive.”
“I thought twice before writing this letter. However, the Constitution specifically recognizes the most senior Judge of the Supreme Court (including in Article 175A(3) and Article 180), and with seniority comes responsibility, which must not be shirked.
The most senior judge also ensures continuity of the Supreme Court as an institution. As far as I know, every predecessor of yours consulted the most senior Judge. This established practice has been discarded, which may have adverse attendant consequences for the institution. Silence would maintain me in good stead while speaking out may be visited upon with consequences, but having sworn to preserve, protect and defend the Constitution.”