The senior-most judge of Supreme Court of Pakistan Justice Faez Isa has said that he is “perplexed” over Chief Justice of Pakistan Justice Umar Ata Bandial’s decision to hear the presidential reference for the interpretation of Article 63A together with the Supreme Court Bar Association’s (SCBA) petition over the no-confidence motion.
The government filed the reference for Article 63A’s interpretation on Monday. However, while conducting a hearing on SCBA’s plea on Saturday — related to public gatherings of the Opposition and the government in the federal capital ahead of the no-confidence motion against Prime Minister Imran Khan — CJP Bandial had hinted that he would hear the presidential reference along with the plea of the SCBA simultaneously.
In a three-page letter to the top judge, dated March 22, Justice Isa has questioned multiple legal aspects along with the formation of a larger bench “without the inclusion of senior-most judges”.
“On 19 March 2022, a two-member bench headed by yourself and an hon’ble judge 8 in seniority, heard CP No. 2/2022 in Court on a Saturday, despite the filing of the petition on Thursday. On the said date it was ordered that CP No. 2/2022 be heard ‘along with a Reference, if any, that is filed under Article 186 of the Constitution and the petition and the proposed reference were ordered to be fixed together for hearing. I am perplexed as to how a matter which had not been filed was ordered to be fixed for hearing,” the letter said.
Justice Isa argued that since the SCBA’s plea was filed under Article 184(3) of the Constitution, “an order” is supposed to be made on it instantly and it cannot be fixed for hearing on another day.
Moreover, he complained that the plea “cannot be simultaneously heard” with the presidential reference, which are filed under Article 186.
“The original jurisdiction of the Supreme Court (under clause (2) of Article 186) and its advisory jurisdiction (under clause (3) of Article 184) are altogether different; the Supreme Court makes an order in the former and gives an opinion in the latter, it cannot do both simultaneously.”
The third matter which Justice Isa objected to was that a “good practice” by a former chief justice — that made it the top judge’s discretion to constitute benches on the basis of seniority to hear important cases — has been disregarded as the judges made part of the larger bench stand 4th, 8th, and 13th in the line of seniority.
He regretted that there is no discernible criterion in the constitution of the present bench and said that this was the “most troubling part” as it gave rise to “unnecessary and avoidable misgivings.”
The judge further stated that the apex court rules demand that the constitution of a bench is done fairly and as per the law, referring to Article IV of the Code of Conduct, which says:
“[…] 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.”
“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,” Justice Isa wrote.
Justice Isa also complained that the practice to consult with the senior-most judges has also been discarded, warning of the adverse effects to the institution.