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ISLAMABAD: Justice Qazi Faez Isa, senior puisne judge of the Supreme Court, strongly objected to not including the most senior judges in the larger bench for hearing the Presidential Reference.

Chief Justice of Pakistan Umar Ata Bandial on Tuesday constituted a five-member larger bench for hearing the Presidential Reference on the interpretation of Article 63A of the Constitution.

The bench, headed by Chief Justice Umar Ata Bandial, comprising Justice Ijazul Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Muneeb Akhtar and Justice Jamal Khan Mandokhel, will hear the Supreme Court Bar Association petition and the Reference today (Thursday).

Justice Faez in a three-page letter, written to Chief Justice Umar Ata Bandial, sheds light on ‘unfairness’ in the Supreme Court’s internal judicial/ administrative matters. The senior puisne judge raised serious questions over the composition of a larger bench to hear presidential reference.

His letter said, the composition of the five-judge bench consisted of judges who were 4th, 8th, and 13th in the seniority list of the court. This has been done by discarding the good practice of structuring the CJP’s discretion by predecessors of constituting benches consisting of senior most judges when cases involved important constitutional questions.

He pointed out that no senior-most judge was consulted, while constituting the bench to hear the cases, on which the eyes of the entire nation are set, adding this was troubling because it could potentially give 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 advocates general and SC judges.

The judge wrote that the SCBA petition under Article 184(3) of the Constitution cannot be heard simultaneously with the reference under Article 186 in which the president had sought an opinion on interpretation of Article 63A. The original jurisdiction under Article 184(3) of the Constitution and advisory jurisdiction under Article 186 were altogether different and thus, could not be heard simultaneously, said the letter.

The judge mentioned that the procedural method was not taken into consideration, while constituting it. “After all the adage - justice is not only be done but is also seen to be done - has been oft-repeated by the Supreme Court,” the justice recalled in the letter.

The said adage is also incorporated in Article IV of the Code of Conduct, which is to be observed by Judges of the Supreme Court and of the High Courts. Likewise, a Judge must avoid all possibility of his opinion or action, in any case, being swayed by any consideration of personal advantage, either direct or indirect.

Justice Isa said that 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 recognises 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 the 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.”

President Dr Arif Alvi on Monday had filed Reference under Article 186 of the Constitution through Attorney General for Pakistan Khalid Jawed Khan to obtain the opinion of the Supreme Court on questions of law of public importance.

The Court has been prayed to answer the questions of law, so as to purify and strengthen the democratic process worthy of people’s respect and trust and forever eradicate the menace of defections. Four questions of law have been framed in the Reference.

Copyright Business Recorder, 2022

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