Divisions within the Supreme Court have once again come to the fore with a senior SC judge, Ijazul Ahsan, raising objections to the benches recently formed to hear two high profile cases.
Justice Ahsan, who is a part of the three-member committee formed under Section 2 of the Supreme Court (Practice and Procedure) Act, 2023 to constitute benches and list cases for hearing, has written a note to the secretary of the committee—the SC registrar—to “set the record straight”.
The Supreme Court Registrar last week issued a cause list according to which a six-member larger bench led by SC Senior Puisne Judge Sardar Tariq Masood is going to take up tomorrow, December 13, the intra-court appeals filed against an SC larger bench’s order banning trial of civilians in military courts.
According to the cause list, another three-member special bench led by Justice Aminuddin Khan will take up on Friday, December 15, SC judge Sayyed Mazahar Ali Akbar Naqvi’s constitution petitions against the misconduct proceedings initiated against him by the Supreme Judicial Council.
In his letter sent to the registrar on Monday, Justice Ahsan has noted that he had attended the meeting of the three-member committee held in the chamber of Chief Justice of Pakistan (CJP) Qazi Faez Isa on Thursday, December 7, with regard to formation of benches in the two cases.
He said it was agreed in the meeting that as the bench that delivered a verdict against court-martial of civilians comprised five judges, the bench to hear appeals against the verdict should have seven judges.
Justice Ahsan stated that the CJP had agreed to his suggestion that in order to dispel the impression of “pick and choose” the bench to hear the appeals against military courts and Justice Naqvi’s petition should consist of the senior most judges of the court.
He said it was agreed that after asking the proposed members of the two benches, the members of the committee would be informed.
The judges noted that after waiting for information regarding the two benches on Friday, his office made at least three calls to the registrar but the registrar was not available.
“Neither the minutes of the 4th meeting [of the three-member committee] nor those of the 5th meeting were sent to me on Friday or Saturday. Neither of the minutes have been sent or signed by me, yet these have been uploaded on the website of the Supreme Court of Pakistan.”
Justice Ahsan, who is in line to become the next chief justice of Pakistan, noted that it is his right and duty to ensure that the minutes accurately reflect what was discussed in the meetings and what were the points of view of the members of the committee.
He stated that the two benches announced later were not constituted by the committee and were never placed before the committee in its last meeting.
“Had these been placed before the committee, I could have agreed, disagreed, or refrained from giving my views. This has not happened to-date,” he said.
Read: Military trials: Justice Masood to head SC bench
The judge stated that instead of a seven-member bench, a six-member bench was formed to hear the appeals against SC’s military courts verdict and that he has not been informed if any of the judges who are higher in the order of seniority had refrained from becoming part of the bench.
“The three-member bench constituted to hear [Justice Naqvi’s] petition does not comprise honorable judges in the order of seniority.”
The judge said he has written the note to “set the record straight”. “In view of the fact that you have uploaded the minutes without even showing them to me, let alone getting my signature, I expect that this note will also be uploaded on the [SC] website immediately,” he added.
Former CJP also objects to larger bench
Simultaneously, former CJP Jawwad S Khawaja has filed an application in the apex court requesting that Justice Sardar Tariq Masood recuse himself from hearing the appeal against SC order banning trial of civilians in military courts “in the interest of justice.”
The former CJP, who is one of the petitioners who challenged court-martial of the May 9 rioters, stated that Justice Masood and Justice Qazi Faez Isa were part of the nine-member bench formed by former CJP Umar Ata Bandial to hear petitions against military courts.
He highlighted that both Justice Isa and Justice Masood had refused to hear the petitions.
“Justice Isa read out a prepared note in open court. After reading out the note, Justice Isa and Justice Masood rose from the bench. The bench was thereafter reconstituted. Justice Masood issued a signed document dated 26.6.2023.”
He said the note reflects Justice Masood’s views on various matters.
“The relevance of the note for the purposes of the present application is that it gives findings in paragraph number 3 with respect to the maintainability of the subject petitions.
“As a result of these findings, Justice Masood has already expressed his view in this specific matter (and this view was expressed without hearing the parties) that the subject petitions were not maintainable under Article 184(3),” he added.
The former CJP requested the court that Justice Sardar might recuse himself from hearing the case and the matter might be referred back to the three-member committee for reconstitution of the bench.
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