Following serious reservations raised by Justice Qazi Faez Isa and Justice Sardar Tariq Masood, a nine-member bench dissolved, and a seven-member bench resumed the hearing of petitions challenging the trials of alleged May 9 rioters in military courts.
The chief justice requested the government, through the attorney general, to provide detailed information regarding the number of individuals, including women and juveniles, who were detained by civilian and military authorities following the May 9 riots.
“We require specific details on the number of individuals, including women and juveniles, currently held by civilian and military authorities.”
Justice Bandial emphasized that lawyers should not face harassment, and arrested journalists should be released.
The chief justice also acknowledged several objections to military courts, such as the absence of public hearings, lack of legal representation, compromised judicial independence, and inadequate court facilities.
Earlier, Justice Isa and Justice Masood, two senior judges of the apex court, clarified that they were not recusing themselves from the proceedings but declined to participate in the larger bench until the verdict on the Supreme Court (Practice and Procedure) Act 2023 was announced.
Consequently, Chief Justice Umar Ata Bandial, leading the proceedings, reduced the bench to seven members, scheduled to preside over the hearing at 1:30 pm.
Importantly, the apex court has indefinitely adjourned the hearing of petitions filed against the Supreme Court (Practice and Procedure) Act, 2023. This act aims to restrict the powers of the Chief Justice of Pakistan (CJP).
The court postponed the hearing after Attorney General for Pakistan (AGP) Mansoor Awan informed the chief judge that the government intended to reconcile two related pieces of legislation—the Supreme Court (Practice and Procedure) Act, 2023, and the Supreme Court (Review of Judgements and Orders) Act, 2023—but had been unable to do so thus far.
At the beginning of today’s hearing, Justice Isa shared his observations that “according to the SC Practice and Procedures law, the benches are supposed to be constituted through a meeting.”
Justice Isa expressed shock, distress, and deep concern after the top court’s registrar, Ishrat Ali, disregarded his judgment that ordered the postponement of all suo motu cases until amendments in the SC rules regarding the formation of special benches.
Notably, Justice Isa’s order stated: “The Supreme Court Rules, 1980 (the Rules) neither permit nor envisage special benches. However, a Special Bench comprising of three Judges was constituted to hear this case.”
The majority order stated that the top court consists of the CJP and all judges.
“The Constitution did not grant the chief justice unilateral and arbitrary power to decide the above matters. With respect, the chief justice cannot substitute his personal wisdom with that of the Constitution,” the order stated.
Later, the SC registrar argued that the order violated the rules established by a five-member judgment. Justice Isa contested this, maintaining that the registrar was, in fact, violating the constitution.
During today’s proceedings, Justice Isa also criticized the six-member bench’s decision to recall the interim order and, specifically, the removal of a note from the SC’s official website that he had written expressing his reservations about the said verdict.
“The issuance of a circular by the Registrar Supreme Court demonstrates the power of the SC,” Justice Isa remarked in court today.
Justice Isa also noted that “an inquiry commission was formed which was prevented from working further by a five-member bench.”
“However,” he stated, “the inquiry commission was not served any notices nor asked to provide any explanations.”
Justice Isa brought to the court’s attention that it was during this period that CJP Bandial had established an eight-judge larger bench to review the Supreme Court (Practice and Procedure) Act 2023.
Many
legal analysts have claimed that the CJP included like-minded judges in the bench, which suspended the law aiming to regulate the CJP’s discretionary powers regarding the composition of benches and case listings.
It is also interesting to note that since the enactment of the SC Practice and Procedure Act 2023, Justice Isa has not been hearing cases and is solely engaged in chamber work. When CJP Bandial inquired about Justice Isa’s availability for a bench, Justice Isa explained why he was not sitting on the bench.
Today, Isa expressed his “surprise” over the fact that the cause list stated that the SC procedures law had been blocked after being granted “the status of a bill” only.
“Until a verdict on the Practice and Procedures law is announced, I cannot be a part of this bench,” he asserted.
Justice Masood supported Justice Isa’s reservations, questioning the implications for appeals in this case if the law was deemed “correct.”
“Until a verdict on the law is delivered, I do not accept this bench as a court,” Justice Isa declared.
Consequently, the chief justice summoned the AGP and the petitioners’ counsels to his chamber and later announced that a seven-member bench would continue hearing the case in the afternoon.
