Justice Isa, Justice Masood object to bench hearing

ISLAMABAD – Chief Justice of Pakistan Justice Umar Ata Bandial on Thursday reconstituted a seven-member bench hearing appeals against trial of civilians in military courts after senior judges including Justice Qazi Faez Isa recused themselves from hearing the case.

The nine-member bench had included Chief Justice of Pakistan (CJP) Umar Ata Bandial, Justice Isa, Justice Masood, Justice Ijazul Ahsan, Justice Mansoor Ali Shah, Justice Muneeb Akhtar, Justice Yahya Afridi, Justice Ayesha Malik, and Justice Mazahir Ali Naqvi.

The new bench has been constituted after excluding Justice Isa and Justice Masood.

Senior Puisne Judge Justice Faez Isa said he “did not consider the nine-member bench a bench”, with Justice Masood backing him.

Justice Isa stressed that the court should first issue a verdict on the Supreme Court Practice and Procedure Act, 2023, and then constitute new benches.

“I will not accept this court until a decision is issued on the Supreme Court Practice and Procedure Act. All decisions are unconstitutional until the verdict on this act is issued,” Justice Isa said, but noted that he was not recusing himself from the bench.

Responding to the judge’s concerns, CJP Bandial said he had constituted the bench in line with the law.

The petitions separately filed by Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan, former chief justice Jawwad S Khawaja, legal expert Aitzaz Ahsan, and Pakistan Institute of Labour Education and Research (Piler) Executive Director Karamat Ali are against the trial of military courts.

An eight-member larger bench of the Supreme Court (SC) had on April 13 ordered that even if the Supreme Court (Practice and Procedure) Act 2023, received the assent of the president, the law would not be acted upon in any manner till further order.

The ruling was issued on three petitions challenging the SC bill, filed by Raja Amer Khan, Chaudhry Ghulam Hussain and Mohammad Shafay Munir, among others, under Article 184(3) of the Constitution.

At the outset of the hearing, Justice Isa remarked that he was surprised to see his name on the cause list for this hearing at 8pm on Wednesday (a day earlier).

“I am not a part of the bench hearing the [case related to] Supreme Court Practice and Procedure Bill so I will not make any remark about it,” the senior-most SC judge said.

He said that it should be seen what the SC rules say. Article 175/2 of the Constitution gives the court powers to conduct a hearing, he added.

Justice Isa went on to say that earlier, a suo motu notice had been fixed for hearing under his bench.

“I said in my verdict that the rules should be made in Article 184/3 of the Constitution. It was a surprise and shock that on March 31, (SC registrar) Ishrat Ali issued a circular to ignore the March 15 order of the Supreme Court,” he added.

He questioned if this was the importance of a decision made by the apex court.

He said that after this, a six-member bench was formed, which endorsed the circular and withdrew his decision.

“My friends are certainly more capable than me, but I will decide according to my faith,” Justice Isa.

He then raised the question of why no judge from the bench hearing the main case was a part of the 6-member bench for review.

The senior puisne judge mentioned that his note on the six-member bench was removed from the apex court’s website.

He said the CJP had asked him on May 16 whether he wanted to remain restricted to chamber work.

Explaining why he preferred chamber work, Justice Isa said a law had been made for the constitution of benches. The judge said he was not pointing fingers at anyone, but he was caught between the choices of joining the bench or following the law.

“I believe the law can be rejected, not suspended,” he said, in reference to the stay order on the law clipping CJP’s powers.

Justice Isa said when he was asked about chamber works, he wrote a five-page note.

“I believe that everything should be announced in open courts to avoid rumours,” he said, and read out his note in the court, which was removed from the top court’s website.

Justice Masood then said he and Justice Isa could only become part of the benches once an order is issued on the law clipping CJP’s powers.

“If you do not hear this case, then what will happen of the 250 million people?” asked Khosa, at this, Justice Masood asked: “Why didn’t you think about them before?”

Then Ahsan urged Justice Isa to hear the case. In response, the judge said that he respects Ahsan, but cannot go against the law for him.

“Hear this case for the sake of your home,” Ahsan said, to which Justice Isa remarked: “This is the Supreme Court, not someone’s home.”

CJP Bandial then said that two senior judges had raised questions over the bench. He mentioned that the stay order on the law might be lifted.

The CJP told the petitioners that in line with the tradition of this court, there should be no arguments after two senior judges have raised objections.

“We will look for a solution to your case. We have constituted this bench in line with the law,” he mentioned, after which the bench exited the courtroom.