ISLAMABAD: The judicial note of Justice Qazi Faez Isa, the incoming Chief Justice of Pakistan (CJP), regarding a recent court proceeding on petitions related to the military trials of those involved in vandalising army assets after the arrest of former premier Imran Khan, has been removed from the Supreme Court’s website.
Justice Isa, who is set to assume the position of CJP in three months, expressed his concern about the formation of a nine-member bench by Chief Justice Umar Ata Bandial. He argued that the Supreme Court (Practice and Procedure) Act of 2023, passed by parliament, outlines a procedure for the formation of benches in cases related to Article 184(3) of the Constitution.
Under this law, the CJP is required to hold a meeting with senior Supreme Court judges if he wishes to exercise the court’s original jurisdiction under Article 184(3), which deals with matters of public importance involving the violation of citizens’ fundamental rights. Justice Isa expressed surprise that he was included in a larger bench of eight judges without prior consultation.
Justice Isa further pointed out that an eight-member bench had already suspended the Supreme Court (Practice and Procedure) Act of 2023, even before it was enacted. He noted that while the bench has held hearings on petitions filed against the law, it has yet to decide its fate. As a result, he declared his decision to refrain from participating in any court bench or chamber work until the court determines the status of the law. However, he clarified that he is not recusing himself from the bench hearing the case; rather, he believes that the court must first address the validity of the Supreme Court (Practice and Procedure) Act.
Justice Sardar Tariq Masood, the third senior-most judge on the bench, expressed agreement with Justice Isa’s position and raised a pertinent question about the number of judges who would hear an appeal if the Supreme Court declares the Act valid.
Justice Isa highlighted previous instances where his rulings and orders were disregarded, including the issuance of a circular by the Supreme Court registrar that contradicted a majority judgment. He also mentioned a six-member larger bench that overturned his ruling on the powers of the CJP regarding suo motu notices and the formation of benches, without his inclusion in the bench or knowledge of the specific case being heard.
Furthermore, Justice Isa referred to the removal of his note from the Supreme Court’s website, which highlighted why the six-judge bench could not overturn his March 30 ruling. He also touched upon his appointment as head of a commission tasked with investigating videos featuring voices of current and former members of the higher judiciary and their family members, which was subsequently halted by a five-member bench without any notice or opportunity for the commission to respond.
During the court proceedings, divisions within the Supreme Court were discussed, with Justice Isa objecting to Aitzaz Ahsan’s comparison of the divisions to household disputes, emphasising the importance and stature of the Supreme Court of Pakistan.
After a break, seven judges, excluding Justice Isa and Justice Masood, resumed the hearing in a visibly relaxed environment. The bench, after hearing arguments from counsel Aitzaz Ahsan and Faisal Siddiqi, requested the record of all individuals arrested in connection with the May 9 vandalism. However, the bench declined to stay the proceedings of the military courts, stating that a stay order is not a solution to every problem.
