ISLAMABAD: The apex court on Monday observed it had decided to request the top judge to reconstitute a bench hearing Justice Qazi Faez Isa’s petition against a presidential reference. However, later, in a change of hearts, it notified that the same ten-judge full court will take up the case on Oct 28.
“One of the members of this bench Justice Mazhar Alam Khan Miankhel has had demise in his family and is not available today for hearing of the part-heard Constitution Petition No 17 of 2019. In these circumstances, hearing of the said petition cannot continue today.
“However, we are informed that Mr Justice Mazhar Alam Khan Miankhel shall resume his duties next week. Accordingly, the said petition along with connected matters is adjourned to 28.10.2019 at 11:30 am,” said a written order issued by the nine-judge bench led by Justice Umar Ata Bandial in the evening.
The written order came as a surprise as during the short hearing of the high profile case earlier in the day, Justice Bandial had noted that the court was keen to take up the matter and would request the chief justice of Pakistan (CJP) to reconstitute the bench whose one member was not available this week.
“So we [rest of the bench members] conferred with each other and decided to refer the matter to the Chief Justice of Pakistan for the reconstitution of bench,” he noted.
Justice Isa’s attorney Muneer A Malik took exception to the comment and wanted to make submission regarding reconstitution of the bench. However Justice Bandial said it was not his choice whether the bench should be reconstituted or not. The SC judge also remarked that it was expected that matter would be taken up this week. Later, the bench members left from courtroom.
However, superior bars representatives – who were present during the hearing – were shocked by the observation and for the first time, lawyers like Amjad Ali Shah, Hamid Khan, Rasheed A Rizvi, Ali Ahmad Kurd, Latif Afridi addressed media in the SC premises along with Justice Isa’s legal team.
Raising objection to the idea, Rizvi said it is seemed the apex court was in a haste to conclude Justice Isa case during tenure of CJP Asif Saeed Khosa, who is retiring in December. Bars representatives complained that the SC registrar was deliberately fixing the matter when the bench was incomplete.
In the meanwhile, Justice Isa’s counsel also submitted a three-page concise statement and raised objection to reconstitution of bench. He said it was duty of the registrar to fix cases after ensuring that all judges hearing a case are in attendance.
But apparently, he arbitrarily fixed Justice Isa’s case in absence of Justice Miankhel, he said.
He said an incomplete bench convened on Monday and Justice Umar Ata Bandial, heading the bench, stated that he would be requesting the CJP to reconstitute the bench.
“The undersigned (Muneer A Malik) attempted to state that this would be inappropriate and contrary to settled procedure; however, Justice Bandial did not permit him to make his submissions in this regard.
“With utmost respect and in all humility it is submitted that this cannot be done once hearing of these cases has commenced with ten Hon’ble Judges hearing it and the same judges must hear these part-heard cases till their conclusion,”, said the statement.
The counsel stated that serious allegations of impropriety and fixation of cases and constitution of benches have already been leveled against the registrar. Therefore, he had to ensure that these cases be fixed on a date when all the judges hearing these cases were present, but he did not do so.
“That since the undersigned was not permitted to make his submissions to the observations…, the undersigned is constrained to do so in writing through this statement and seeks permission to make detailed legal submissions in this regard if reconstitution of the bench is to be directed.
“…It will be inappropriate to proceed with the case during the temporary absence of one Hon’ble Judge nor will it be appropriate to refer the matter for the reconstitution of the bench by the Hon’ble Chief Justice as this would also be contrary to the order dated 8th October, 2019,” he noted.
However, later the court issued a written order in the evening wherein there was no mention of reconstituting the bench. The same 10-judge full court will resume hearing of the case on October 28.
Superior bars have already requested the Supreme Court to adjourn the case till after the Supreme Court Bar Association’s (SCBA) annual election, which will be held on October 31.