ISLAMABAD: Justice Qazi Faez Isa has stated the Supreme Court's 11th February order does not meet the stipulated criteria to constitute a legal order or a decision in terms of Article 189 of the Constitution, as it is contrary to the rules of natural justice, the Constitution, impartiality and fair play.
Justice Faez on Saturday announced his separate note against the order/judgment of a five-member bench, headed by Chief Justice Gulzar Ahmed, and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Qazi Faez Isa, and Justice Ijazul Ahsan.
The bench on February 11, 2021 heard a suo moto regarding distribution of funds to MNAs/MPAs by the prime minister.
The same day, late in the evening, Chief Justice of Pakistan Gulzar Ahmed passed an order/judgment; "It would be in the interest of justice that the Judge [Justice Qazi Faez] should not hear matters involving the Prime Minister of Pakistan."
Justice Faez's separate note said: "Paragraph 6 of the order (passed against a Judge) undermines the judiciary and the Supreme Court. Paragraph 6 of the order contravenes the oath of Judges."
A two-member bench comprising Justice Qazi Faez and Justice Maqbool Baqir issued notices to attorney general for Pakistan (AGP) and advocates general of all provinces in response to a media report that Prime Minister (Imran Khan) disbursed funds "for apparent political patronage at a time when the Senate elections were on the horizon."
Justice Isa's note said the chief justice without informing the two-member bench, which was already hearing the matter, decided to reconstitute the bench, expand it and exclude Justice Maqbool Baqar from it.
It said: "No one had alleged bias or lack of impartiality against any Judge on the Bench; Without consulting his colleagues on the Bench, the Chief Justice tersely announced that a Judge of the Supreme Court should not hear any case involving the Prime Minister.
"The Chief Justice arbitrarily introduced a non-issue - bias and lack of impartiality on the part of a Judge on the Bench; The said Judge was not made privy to the written order; The order was sent to a junior Judge while the said Judge, his senior, was bypassed; The 'Order of the Court' was not written and thus, not signed, therefore, there is no Order of the Court and the matter remains pending; The order was uploaded on the Supreme Court website before a Judge had seen it, let alone had the opportunity to agree/disagree with it.
"What commenced as an attempt to prevent corrupt practices and bribery ended with a Judge being rebuked and restrained.
"I contemplated submitting a resignation letter, but then I remembered that this is not about a Judge and his mistreatment. It is about something far more important; the Constitution, the peoples' rights and their monies. A smaller bench cannot take a view contrary to a larger bench's.
"The order is contrary to the decisions in the cases of Abdul Wali Khan, Abrar Hassan, Asad Ali, and Muhammad Akram Shaikh; which were decided by larger benches of the Supreme Court.
"The Supreme Court does not have jurisdiction to pass an order of the nature of the order.
"Significantly, the order does not state which particular jurisdiction was exercised.
"If a court assumes jurisdiction which it does not have, such an action/order is liable to be struck down; the Constitution enables the High Courts and the Supreme Court to do so. Neither High Court nor the Supreme Court can confer jurisdiction on itself which it does not already have.
"The chief justices may have discretion to constitute benches but must do so for some reason. The reconstitution of a Bench already seized with a matter (and in which a date-by-court had been given) must always be for a good, if not compelling, reason. Unstructured and arbitrary use of discretion gives rise to misgivings and undermines the peoples' confidence.
"It also demoralizes the members of the bench from whom the matter has been taken away. In constituting benches hearing important constitutional matters unstructured discretion is exercised. This recurrent issue has been left unattended by chief justices and not made into an agenda item for Full-Court meetings."
Justice Qazi Faez hoped that unstructured discretion is curtailed, since it has never served any institution, nor the interest of the people.
The note said the Supreme Court is the final arbiter of all disputes and the custodian of the Constitution. It is tasked to ensure that the Executive does not overreach or act contrary to the Constitution. If the Executive's transgressions are not checked, and instead benches are reconstituted and judges restrained, the people suffer.The oath of office of a Judge requires him to hear all cases 'to the best of his ability, and faithfully, in accordance with the Constitution' and to 'do right to all manner of people', which would include Imran Khan in his personal capacity and in his capacity as the Prime Minister.
"The Election Commission did not take notice of the present matter of "development funds" said to have been promised by the Prime Minister.
"Therefore, this Court could not ignore the matter, nor the Documents, as it needed to be ascertained whether the Constitution was violated.
"In the past, many a time on insubstantial grounds and without supporting material, jurisdiction was assumed and exercised under Article 184(3) of the Constitution," according to Justice Isa's note.
"In one such matter, a 'WhatsApp' message (from an unknown and unverified source) was received, the WhatsApp transformed into a Human Rights Case and an interim order was passed stopping the recovery of two federal and four provincial taxes.
"By the time the case was decided, the federal and provincial governments had suffered a loss of about one hundred billion rupees.
"It was later decided that there was no merit in the case, consequently, the injunctive order was discharged/recalled and the case was dismissed."
The note further said the instant matter (distribution of funds by prime minister) has no similarity with the abovementioned case because: (1) notice in this matter had already been taken (it was not taken on the basis of the said message or the Documents), (2) the Documents appeared official, (3) the Documents were provided to all concerned, (4) opportunity to verify the Documents was provided, (5) if the Documents were genuine, another opportunity to explain them would be provided, and no unilateral order, without first hearing the concerned, would be passed.
About the reference of Article 248 of Constitution in the CJP order, Justice Isa's note said that "there is no constitutional protection if an office is misused for personal or political gain, enriching friends, taking bribes or resorting to other corrupt practices, including diverting public funds to buy or influence legislators to vote for particular candidates."
Copyright Business Recorder, 2021
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