25th June 2023
It is a matter of great concern that our esteemed judiciary has been consistently making headlines in recent months. The latest incident involves the removal of a comprehensive 30-page document authored by Senior Puisne Judge Justice Qazi Faez Isa from the Supreme Court (SC) website, shortly after it was uploaded. This is not the first time such an occurrence has taken place, particularly in Justice Isa’s case. Earlier this year, a dissenting note penned by him, which had also been uploaded on the SC website, was similarly taken down within a day or so.
In his recently written note, Justice Isa explains why he views the nine-member bench responsible for hearing petitions on the trial of civilians in military courts as an illegitimate body. He emphasizes the necessity of resolving the Supreme Court Practice and Procedure Bill, 2023 before forming any new benches. As the future chief justice of the country, Justice Isa asserts that according to the Practice and Procedure Bill, a bench in the SC should be constituted by a committee comprising the Chief Justice (CJ) and the two most senior judges following the CJ. However, not only has the SC Practice and Procedure Bill been suspended, but no date has been set for hearing the matter.
When the petitions concerning trials in military courts were announced, legal experts already predicted that the chief justice would finally include Justice Isa in this bench, despite a tendency to overlook him when forming benches related to political issues. It was also anticipated that Justice Isa, who had clearly stated his preference for resolving the Practice and Procedure Bill before leaving his chamber work, might refuse to sit on the bench. Legal experts find Justice Isa’s reasoning for abstaining from the nine-member bench valid. They argue that the issue is not solely about the subject matter of the petitions in the Supreme Court but rather about his assertion that no bench can be formed without considering the SC Practice and Procedure Bill.
At the heart of this ongoing debate lies the Supreme Court Practice and Procedure Bill, which currently remains suspended. It is evident that the current turmoil within the SC is a consequence of the delayed consideration of this crucial legislation. The formation of the nine-member bench for the military courts petitions without proper consultation or addressing the underlying issue is difficult to justify logically. Some experts believe that if this matter had been resolved within the judiciary first, a larger bench could have rendered a landmark judgment, addressing numerous important issues in the process. Unfortunately, this has become an all-too-familiar scenario, where benches become contentious while the underlying issue remains unresolved.
Justice Isa’s note sheds light on the flaws within the judicial process and how arbitrary decisions have led to dysfunctionality. For several years, lawyers, bar councils, and even judges have emphasized the need to regulate the chief justice’s suo-motu powers and bench-formation authority, ensuring the independence and impartiality of the judiciary are not called into question. When the government finally introduced a bill to address these concerns, it faced a preemptive strike from the highest office of the court, drawing criticism from many quarters. As pointed out by legal experts, the Supreme Court comprises not only the Chief Justice but all the judges of the top court. This bill seeks to empower the entire SC, rather than an individual, as has been the case thus far. In the long run, this will serve the cause of justice and alleviate some of the controversies surrounding the office and stature of the chief justice of the highest court in the country. With just a few months left in his tenure, it would be wise for CJ Bandial to resolve this issue definitively.