Justice Mansoor Ali Shah has said the Chief Justice has prerogative to constitute benches but once a bench is constituted and is seized of a matter on judicial side, it cannot be reconstituted by the Chief Justice in exercise of his administrative powers unless any member of the bench recuses himself/herself from hearing the case.
Justice Mansoor was part of a three-judge bench headed by Chief Justice Mian Saqib Nisar, which also comprised Justice Qazi Faez Isa that on 09-05-2018 heard the cases in Supreme Court Peshawar registry.
The bench first heard a case (Constitutional Petition No. 74/2013 titled Prof Muhammad Ibrahim Khan and others vs ERRA. When the second case on the Cause List (HRC Nos. 14960-K of 2018, 14962-K of 2018 and 14964-K of 2018) came up for hearing, Justice Faez inquired from the counsel as to how the case was initiated by the Human Rights Cell under the Article 184(3) of the Constitution.
"At this juncture I felt a certain unease amongst the other two members of the bench over the issue of Article 184(3) and in order to avoid any further escalation, I proposed to the chief justice to take a brief recess so they can discuss this matter in chambers to avoid embarrassment in open court," said Justice Mansoor's order issued on Saturday.
He wrote that the Chief Justice, instead, announced in open court that the bench stands reconstituted and that the new two-member bench will re-assemble soon. "The bench was reconstituted and the new two-member bench, comprising the Chief Justice and myself [Justice Mansoor], assembled and resumed the hearing of the instant case." Justice Faez was excluded from the bench as he objected how director Human Right Cell can treat any human right case.
"We also heard the other cases from the same Cause List. However, after court, I had a chance to read the Order of my learned brother (Justice Faez), which says; "Article 184(3) of the Constitution grants to the Supreme Court the power to make an order of the nature mentioned in Article 199 of the Constitution. However the apex court powers cannot be assumed by the said director. The approval of the Chief Justice is also not a substitute for an order of the Supreme Court," said order of Justice Mansoor.
Justice Mansoor's order says, "Upon examining the legal position, given Supreme Court Rules, 1980 regarding constitution of bench I declined to sign the orders of the newly re-constituted two-member bench unless the Order of my learned brother (Justice Faez) was responded to."
Justice Mansoor stated that under Order XI of the Supreme Court Rules, 1980 (Rules), the Chief Justice has the prerogative to constitute benches. It is the administrative powers of the Chief Justice to constitute benches. However, once the bench is constituted, cause list is issued and the bench starts hearing the cases, the matter regarding constitution of the bench goes outside the pale of administrative powers of the Chief Justice and rest on the judicial side, with the bench.
Any member of the bench may, however, recuse to hear a case for personal reasons or may not be available to sit on the bench due to prior commitments or due to illness. The bench may also be reconstituted if it is against the Rules and requires a three-member bench instead of two. In such eventualities the bench passes an order to place the matter before the Chief Justice to nominate a new bench.
In the absence of a recusal by a member of the bench, any amount of disagreement amongst the members of the Bench, on an issue before them, cannot form a valid ground for reconstitution of the Bench. Any reconstitution of the Bench on this ground would impinge on the constitutional value of independence of judiciary.
"The construct of judicial system is pillared on the assumption that every judge besides being fair and impartial is fiercely independent and is free to uphold his judicial view. This judicial freedom is foundational to the concept of Rule of Law. Reconstitution of a bench while hearing a case, in the absence of any recusal from any member on the bench or due to any other reason would amount to stifling the independent view of the judge."
Any effort to muffle disagreement or to silence dissent or to dampen an alternative viewpoint of a member on the bench, would shake the foundations of a free and impartial justice system, thereby eroding the public confidence on which the entire edifice of judicature stands. Public confidence is the most precious asset that this branch of the State has. It is also one of the most precious assets of the nation.
The reconstitution of two-member bench and the proceedings before it on 9th May 2018, in all the cases fixed before it are void and non-est. "I agree with Justice Qazi Faez Isa that the reconstitution of the bench by the CJP Saqib Nisar in the present case is unwarranted and unprecedented and undermines the integrity of the system," says the order.
This order may be read into other cases fixed before the three-member bench on that day i.e. from serial No. 2 to 8 of the cause list of that day, and which were again fixed before the reconstituted two-member bench. "All those cases are to be put up for rehearing before an appropriate bench to be constituted by the Chief Justice and record of the court must reflect the correct status of these cases."
Justice Mansoor order says; "I am constrained to write this as not doing so would weigh heavily on my conscience and I would be abdicating my responsibility as a judge."
"Since then I waited for the senior member of the Bench (the Chief Justice) to pass an appropriate order in the case and also respond to the Order passed by my brother Justice Qazi Faez Isa in order to explain the reconstitution of the bench that day. However, no such order has been passed till date and the case has been incorrectly reflected in the "Bench Disposal Statement" of the said date as an adjourned case."
"Chief Justice Mian Saqib Nisar is retiring on 17th January 2019, therefore, I feel constitutionally obligated, as a member of the bench, to express my views regarding the Order of my brother and to pass my order in this case when it came up for hearing before the bench 19.05.2018," said the order.
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