Justice Yahya calls for forming full court

Justice Yahya Afridi—who is part of a six-member apex court bench hearing petitions challenging court martial of May 9 rioters—has requested Chief Justice of Pakistan (CJP) Umar Ata Bandial to constitute a full court to hear the petitions.

In a note that was part of the court’s June 23 order—issued on Tuesday—the judge noted that the entire edifice of a credible justice system is based on public trust.

“In the current politically charged scenario, where the term of the present government is drawing close to its end and the nation is gearing up for fresh elections, the political murmurings against the composition of the present bench could be palatable.

“But what is most serious and cannot be disregarded is that there are objections in writing from within the members of the bench, to the very constitution of the bench hearing the present petitions,” he said, referring to a note of Justice Qazi Faez Isa who was part of the bench, earlier including nine judges.

"In this regard, the Hon'ble Senior Puisne Judge [Justice Isa] has recorded in writing his said objections, and the same are by now in the public domain.

When a nine-member bench led by CJP Bandial on June 23 started hearing petitions filed by former CJP Jawwad S Khawaja, former prime minister Imran Khan, Pakistan Peoples Party (PPP) leader Aitzaz Ahsan and the civil society against trial of civilians in military courts, Justice Isa raised a number of issues.

Justice Isa, who has already been notified as the next CJP three months in advance, took exception to the bench. He said the parliament had passed the Supreme Court (Practice and Procedure) Act, 2023 which outlines a procedure for formation of benches in cases related to Article 184(3).

He said according to the law, the CJP is supposed to hold a meeting with senior SC judges if he wants to exercise the Supreme Court’s original jurisdiction under Article 184(3).

The judge noted that he could not hear the petitions filed against military courts until the apex court decided the fate of the Supreme Court (Practice and Procedure) Act, 2023 which an eight-judge bench suspended even before its enactment.

Another member of the bench, Justice Sardar Tariq Masood had agreed with Justice Isa and also refused to hear the petitions. Later in a note that was published and later taken down from the SC website, Justice Isa had said he "did not consider the nine-member bench a bench".

Justice Afridi noted that the matter of the composition of the bench warranted urgent attention and reconsideration by the CJP, “lest it may dampen public trust in the justice system."

"In no way am I endorsing or agreeing with the reasons recorded by the Hon'ble Senior Puisne Judge in his written note. At this stage of the present proceedings, I do not find it appropriate to comment on the legality thereof.

“Yet, even if one may not agree with the law points raised in the objections of the Hon'ble Senior Puisne Judge, propriety demands taking appropriate measures for ‘maintenance of harmony’ within the court, the ‘integrity of the institution’, and ‘public trust in the court’,” he said.

As a first step, he said, the appropriate measure would be that a full court bench be constituted to hear the present petitions.

“Without taking such a measure, I submit with utmost respect, any judgment rendered on these petitions by the bench may lead to the diminishing of the deference the decision requires and deserves.

"It is, therefore, most earnestly urged that the Hon'ble Chief Justice of Pakistan may consider the reconstitution of the present bench, and refer the present petitions to a full court bench," he noted.

Earlier, Justice Mansoor Ali Shah, who recused himself from the case after the government raised objection to his inclusion in the bench on June 26, had also called for forming a full court to hear the pleas.