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ISLAMABAD: Justice Qazi Faez Isa stated he was targeted for no reason other than for doing his duty to take notice of harassment and intimidation of journalists.

In a 15-page letter to the five-member special/larger bench, he stated that Justice Bandial on August 23 though while responding to the President Supreme Court Bar Association Abdul Latif Afridi sought to dispel the impression that the Supreme Court stood divided.

“However, a legitimate public perception cannot be assuaged by platitudes when I have been targeted for no reason other than for doing my duty.”

“If the distinguished colleagues had any apprehensions or misgivings, they could have discussed the matter with the members of the Bench-II, which had taken notice and passed the order dated 20 August, 2021, but none of them did so and the Registrar maintained utmost secrecy. The matter was immediately and publicly disclosed, and I learnt of it, through the press,” he further wrote.

A five-member larger bench, headed by Justice Umar Ata Bandial and comprising Justice Ijazul Ahsan, Justice Muneeb Akhtar, Justice Qazi Muhammad Ameen, and Justice Muhammad Ali Mazharon on August 23 issued notices to the Attorney General for Pakistan, President SCBA and Vice-Chairman Pakistan Bar Council to decide and determine the contours of invocation of suo moto jurisdiction under Article 184(3) of the Constitution.

Justice Isa stated in his letter that the “Constitution does not permit monitoring jurisdiction, first exercised by the registrar, then by the acting chief justice and then by the special/larger bench.

“My distinguished colleagues do not have the jurisdiction to hear the said case and if they continue hearing it they will transgress the Constitution. Consequently, any purported order passed by the purported larger bench would be a constitutional nullity, void and of no legal effect.”

Justice Isa's order held in abeyance by larger SC bench

The larger bench could not assume monitoring powers to monitor the working of the said bench or any manner whatsoever interfere therewith, according to Justice Isa. Justice Isa wrote, among other things, “that Bench-II had not decided anything as yet. Once the case had been decided any person who considered that the case had not been dealt with in accordance with the constitution or the law, could have recourse to the review jurisdiction of the Supreme Court. But to constitute a purported larger or special bench to monitor the working of another bench is unconstitutional.

“If a bench of the apex court starts to monitor the workings and order/s passed by another bench it would result in chaos and the collapse of the judicial system if different bench start to undo, supplant and/or set aside the orders of the other benches. “A case cannot be monitored by another bench nor can a bench, hearing a case be reconstituted, but this was done by former Chief Justice Saqib Nisar on May 9 in Peshawar in open court, by abruptly and verbally reconstituting the bench and ejected a member from the bench.

“Despite the lapse of three years my (Justice Isa) and Justice Mansoor orders remain unattended. The plausible reason could be that some Chief Justice may wish to have unbridled and unfettered discretion, and not to be constrained by the requirements of Article 184(3).

“And, such a Chief Justice, even in respect of matters which require the immediate attention of the Supreme Court under Article 184(3) would want to act as a filter. The constitution does not envisage such a role either for the Chief Justice or for the Registrar, however such a role is assumed.

“The constitution grants/bestows onto the Chief Justice of Pakistan certain specific powers, duties and responsibilities which only he can undertake or perform such as those mentioned in Article 10(4), 42, 146(3), 152, 159(4), 168(2), 175A(2) and (5, 182, 183(2), 200, 203C(6), 203F(3), 209(2) and (3), and 214 of Constitution. However, such powers or responsibilities specifically conferred upon the Chief Justice cannot assume additional ones. In all other matters, he is first among equals, nothing more and nothing less,” according to Justice Isa.

Justice Isa wrote that “the August 23 order of the larger bench is subject to a number of misconceptions. The larger bench order states that procedural issue of how suo moto motions may be entertained by the Court requires consideration and determination”. He stated that a 9-member bench of the apex court has already decided the very issue in the case of Watan Party vs Federation in 2012. The 5-judge bench cannot undo the judgment, given by a nine-member bench of the apex court.

Meanwhile, Attorney General for Pakistan Khalid Jawed Khan, on Wednesday, urged the apex court that where legal questions have been framed and notices have been issued to the respondents, the chief justice may constitute a special five-member bench to finally hear and decide the petition under Article 184(3).

He submitted that the apex court has been very “flexible” in allowing invoking of jurisdiction under Article 184(3), and Court’s jurisdiction is neither curtailed by Rules nor by Administrative orders/circulars, some regulatory mechanism is nevertheless warranted in order to ensure smooth functioning of the Court.

In a written submission, he stated that “if each bench independently operates and entertained petitions under Article 184(3) and proceeded to hear the matter and pronounced orders/judgments without reference to the Chief Justice who is entrusted with fixation of Roster, there may be conflicting and even contradictory orders/judgments. The Supreme Court being the apex Court, there will be no forum to challenge the conflicting orders/judgments. An even more compelling consideration which calls for regulating the procedure for invoking the jurisdiction is that if individual parties or litigants are allowed to pick and choose benches of their preference, this may result in complete chaos which would seriously undermine the system of administration of justice in the country. This may also result in allegations of nepotism and favouritism, which though will invariably be frivolous and unwarranted, yet it will shake the public confidence in the institution of judiciary. In order to lend credibility, certainty and consistency, all powers exercised and exercisable in the process ought to be based on objective criteria leaving minimum scope for use of discretionary powers and ensuing misperception that entails open-ended authority and jurisdiction”.

Copyright Business Recorder, 2021

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