SC judge objects to CJ’s petition scheduling

ISLAMABAD:

Differences among Supreme Court judges surfaced as a senior judge raised concerns over the swift scheduling of petitions challenging the trial of civilians in military courts.

Justice Sardar Tariq Masood expressed surprise at the petitions being fixed for hearing shortly after the petitioner, Chaudhry Aitzaz Ahsan, had a meeting with Chief Justice of Pakistan Umar Ata Bandial in his chamber. Justice Masood, in a judicial note, emphasized that he was not consulted before being assigned to the bench for the cases.

He questioned the practice of allowing petitioners to meet the Chief Justice to expedite their cases and sought clarification on whether this privilege would extend to all pending petitions.

“Surprisingly, these petitions in this Bench have been fixed when just a day earlier the petitioner of the Constitution Petition No. 25 of 2023 himself along with his counsel met the Hon'ble Chief Justice in his Chamber and thereafter on the next day these petitions have been fixed without any consultation or ascertaining the mine," he adds.

Justice Masood also asked as “if the practice is allowed than whether every petitioners/appellants whose petitions/appeals are lying in this court since years can be allowed to meet the chief justice in his chamber for getting fixed their cases on the very next day”.

He said that he was awaiting the decision in the petitions through which the Supreme Court (Practice and Procedure) Act 2023 (the Act') have been challenged and expected that they would be decided soon as interim ex-parte stay order was issued which had suspended the operation of the then bill and the proposed Act.

Section 3 of the Act stipulates that "any matter invoking exercise of original jurisdiction under clause 3 of Article 184 of the Constitution shall be first placed before the committee constituted under section 2 for examination if the Committee is of the view that a question of public importance with reference to enforcement of any of the fundamental rights conferred by Chapter 1 of Part II of the Constitution is involved it shall constitute a bench comprising not less than three judges of the Supreme Court which may also include the member of the committee for adjudication of the matter".

The judge, however, said that the present matter was not referred to the committee, of which he is the member. "Only by presuming that the Act will be struck down, the mechanism provided in section 3 of the Act has been disregarded."

"When stay order was passed I was also reluctant to sit on a Bench till the final decision of the said petitions in which the Act was challenged but as I was heading a Bench in which about thirty to thirty five criminal cases used to be fixed daily of the citizens of the Pakistan, who were in jail and waiting for the decision of their petitions/appeals against their conviction hence I kept on dealing the said criminal work and also requested the Hon'ble Chief Justice for early disposal of the petitions filed against the Act.

"Although during this period I when heading two members bench, have heard Constitution Petitions No.26 and 28 of 2016 titled as Muhammad Tariq Asad Vs Federations of Pakistan and Siraj-ul-Haq, Ameer Jamaat-e-Islami Vs Federation of Pakistan, for the reason that regarding the maintainability of those petitions under Article 184 (3), a five Members Bench, had already decided in affirmative and declared that those petitions were maintainable.

"Even after formulating the certain queries, I adjourned the said case for more than a month with expectation that by that time, petitions against the said Act would be decided."

Justice Tariq, in his note has also questioned over the maintainability of the four petitions challenging the trial of civilians before military courts under the Army Act.
"These four petitions have been filed by those who apparently are not detained, nor facing trial with regard to the offences, allegedly committed on May 9, 2023 in Cantonment Areas and the said persons had attacked, destroyed and/or burnt public property and the property of the armed forces, the PAF base and other prohibited areas, etc., including the GHQ.

"If a law is challenged, usually it is before the high court under Article 199 of the Constitution however these petitions have been filed in this court under Article 184 (3) of the Constitution which jurisdiction can only be invoked in the public interest for the enforcement of fundamental rights mentioned in Chapter 1 of Part-II of the Constitution.

"It should not be presumed that those who may be tried raised objections to their trial under the Army Act, 1952 nor that they prefer to be tried in any Anti-Terrorism Court under the Anti-Terrorism Act, 1997 criminal court mentioned in the Criminal Procedure Code.

"In any event, every individual case has to be considered on the basis of the fact of the case and the applicable law and this is to be done after hearing the nominated accused, nothing should be done which may jeopardize the interest of an accused without hearing his side.

"I am also surprised that this nine Members Bench was constituted on the assumption that the Act will be struck down because if it is not, than any party who is not satisfied with its decision, their right to appeal under section 5 of the Act would be made redundant because such an appeal is to be heard by a larger bench of the Supreme Court.

"Presently, the Supreme Court comprises of fifteen Judges and the Chief Justice, which makes a total of sixteen Judges. However, if the full court comprising of sixteen judges and the Chief Justice is available, i.e., seventeen judges then an appeal would be heard by minimum of ten judges which is not possible in the present situation so the appeal if filed by the either party would not be heard."
Justice Masood also made it clear that he has not recused from the bench, hence there was no question to sign the purported order in which it has been mentioned that “the new bench will be constituted whereas my point of view was that these petitions be heard afterthe decision of the said petitions which have been filed against the Act, hence I am writing my independent note/order”.

Another judge, Justice Syed Mansoor Ali Shah, who has already recused from the bench in his earlier note had said, "I sit on this Bench with a reservation which I wish to record at the very outset on this first day of hearing. With respect, in the recent past there has been a consistent pattern and reluctance of not constituting the Full Court Bench (but instead Special Benches of some Hon'ble Judges) in cases of immense public importance that have far-reaching impact on the political, social and economic life of the people of Pakistan and their fundamental rights."

"The non-formation of the Full Court Bench, in my opinion, has severely undermined the authority of the Court and the legitimacy of its judgments.
"The constitutional significance of the matter involved in the present case and its potential ramifications, call for the highest level of judicial scrutiny."

"Collective deliberations and diverse insights by all the judges in cases of public importance helps the Court arrive at a sound judgment and reinforces public confidence and trust in this Court"

"Additionally, I am of the opinion that until this Court decides the constitutionality of the Supreme Court (Practice and Procedure) Act 2023, Section 3 of which prescribes the procedure for invoking the original jurisdiction of this Court under Article 184(3) of the Constitution, all such matters under this jurisdiction must be heard by the Full Court Bench of this Court.

"In order to safeguard the integrity and authority of this Court, I requested the Hon'ble Chief Justice of Pakistan to consider constituting the Full Court Bench of all judges of this Court, except those who are out of the country, and leave it to each one of them to decide whether or not to recuse from hearing the case.

However, his lordship has not, in his wisdom, thought it fit to accede to my request. I have no choice but to sit on the Bench as part of my constitutional obligation including above all the terms of my oath, which require me to preserve, protect and defend the Constitution including the fundamental rights of the people of Pakistan in particular their right to life, liberty, dignity due process and fair trial," says Justice Shah.

Both the notes are attached with the June 22 order wherein two judges, Justice Qazi Faez Isa and Justice Sardar Tariq Masood, had refused to hear the case. The matter was referred to the chief justice of Pakistan who formed a seven-member larger bench for hearing the cases.