ISLAMABAD: Two senior judges of the Supreme Court also supported the viewpoint of Justice Qazi Faez Isa that the fate of the SC law case should be decided first.
Justice Syed Mansoor Ali Shah has emphasized the need to determine the constitutionality of the Supreme Court (Practice and Procedure) Act 2023 before proceeding with matters falling under the Supreme Court’s original jurisdiction.
He suggests that such cases should be heard by a full court bench of the Supreme Court (SC) until a decision on the Act is reached.
In detailed notes, SC Justices Sardar Tariq Masood and Syed Mansoor Ali Shah have expressed their agreement with Justice Qazi Faez Isa’s reasoning for refusing to sit on the larger nine-member bench constituted to hear petitions related to military court trials of civilians.
Subsequently, the bench was reduced to seven members.
These notes complement a detailed note written by Senior Judge Justice Isa on June 22, in which he explained his refusal to be part of the larger nine-member bench and highlighted the need to address the Supreme Court Practice and Procedure Bill, 2023 before he could participate in SC benches.
Interestingly, the note by Justices Masood and Shah concurs that the Supreme Court (Practice and Procedure) Act 2023 must be resolved before such benches can be formed.
Justice Masood agrees with Justice Isa’s note, revealing that he was not consulted by Chief Justice Umar Ata Bandial before being included in the nine-member bench. He finds it surprising that the petitions were scheduled for the day following a meeting between the petitioner of “Constitution Petition No 25 of 2023” and the chief justice.
Justice Masood states that he is awaiting a decision on the Supreme Court (Practice and Procedure) Act 2023 and expects it to be resolved soon.
Similar to Justice Isa’s note, Justice Masood also mentions Section 3 of the Supreme Court (Practice and Procedure) Act, which states that any matter invoking the exercise of original jurisdiction under clause 3 of Article 184 of the constitution must first be presented to the committee constituted under section 2.
If the committee determines that a question of public importance concerning the enforcement of fundamental rights is involved, it shall form a bench comprising at least three judges of the Supreme Court, which may include a committee member, to adjudicate the matter.
According to Justice Masood, the current issue regarding military trials of civilians was not referred to the committee, of which he is a member.
Justice Masood expresses reluctance to sit on a bench until a final decision on the Supreme Court (Practice and Procedure) Act is made. However, due to his involvement in a bench dealing with numerous criminal cases of incarcerated individuals (approximately 30-35 cases daily), he continued to handle the criminal workload while requesting the chief justice to promptly resolve the petitions concerning the Act.
Importantly, Justice Masood, like Justice Isa, clarifies that he has not recused himself from the bench. Therefore, there is no reason to sign the supposed order indicating the formation of a new bench. He maintains that these petitions should be heard after deciding the petitions filed against the Supreme Court (Practice and Procedure) Act 2023.
Justice Shah adds his note to the document, expressing reservations about the consistent pattern of not constituting a full court bench in recent times. Instead, special benches consisting of selected judges have been formed for cases of significant public importance that have far-reaching consequences on Pakistan’s political, social, and economic life and fundamental rights.
He believes that this practice has severely undermined the court’s authority and the legitimacy of its judgments.
Referring to the current case involving military court trials of civilians, Justice Shah asserts that the matter’s constitutional significance and potential ramifications necessitate the highest level of judicial scrutiny.
He argues in favor of a full bench hearing, stating that collective deliberations and diverse insights from all judges in the bench.
