‘Arbitrary’ case selections against independence of judiciary, says Justice Isa

ISLAMABAD: Justice Qazi Faez Isa noted if the Registrar, a Judge or even the Chief Justice selects particular case(s) for early hearing, without following predetermined, reasonable and fair criteria with regard to the fixation of cases, the principle of independence of the judiciary may be undermined.

The maintenance of the rule of law, transparency and fairness in the constitution of Benches and fixation of cases must be established to retain the independence, integrity and prestige of this Court, he added.

Hearing a petition of Muhammad Imtiaz, fixed before a two-judge bench comprising Justice Qazi Faez Isa and Justice Yahya Afridi, the bench noted that this and eleven other cases were fixed before ‘Regular Bench-II’ comprising of Justice Qazi Faez Isa and Justice Syed Hasan Azhar Rizvi on Tuesday, 28 February 2023, and a three-member Bench was headed by Justice Yahya Afridi.

However, these two Benches were reconstituted. Justice Syed Hasan Azhar Rizvi was removed from the Bench headed by Justice Qazi Faez Isa and replaced with Justice Yahya Afridi and Justice Sayyed Mazahar Ali Akbar Naqvi, who is junior to Justice Yahya Afridi, was made to head the Bench in place of Justice Yahya Afridi.

Justice Faez in order to ascertain the reason for this mid-week and abrupt reconstitution of Benches the Registrar, summoned Registrar Ishrat Al asking him to bring the relevant record. On his appearance before the bench he was asked the rationale necessitating the said changes. He stated that ‘the Chief Justice through his Staff Officer Irshad communicated that the Benches be changed and that I should prepare a note to this effect. Ishrat told the bench;” I prepared a note and submitted it for the formal approval of the Hon’ble Chief Justice.”

The only document shown to us in this regard is titled ‘Court Roster for Tuesday 28th February, 2023’ which is dated 27 February 2023 wherein the reconstituted Benches are listed and at the bottom the following words are typed, ‘Submitted for approval please.’

Justice Faez in his judgment noted that the Rules do not grant any power to the Registrar or to the Chief Justice to change the judge or judges on a Bench or to reduce their number.

In innumerable decisions this Court has castigated the arbitrary use of power. The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents and fair informal procedure. Somehow, in our context, the wide-worded conferment of discretionary powers or reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of the power and it gives that impression in the first instance but where the authorities fail to rationalise it and regulate it by Rules, or policy statements or precedents, the Courts have to intervene more often than is necessary, apart from the exercise of such power appearing arbitrary and capricious at times.’ If this Court holds others to such standards, can there be any justification to absolve itself of the same?

In Sabir Iqbal v Cantonment Board, Peshawar,16 this Court categorically observed that, ‘The courts will quash exercises of discretionary powers in which there is not a reasonable relationship between the objective which is sought to be achieved and the means used to that end… .’ This Court loses credibility and public confidence if it fails to adhere to the same directions it imposes on others.

The judgment said that it will not be out of place to mention that different Benches of this Court and Judges have also from time to time highlighted and called for structuring such discretion and acting transparently.

The Case Management Committee of the Supreme Court of Pakistan was setup to opine on how best to attend to the large number of cases which had accumulated. It submitted a Report on 1 March 2022. The Registrar informs us that the said Report was sent for the approval of the Chief Justice on 22 July 2022 and his lordship’s approval is awaited.

Justice Faez wrote that the Code of Conduct requires Judges to ‘present before the public an image of Justice of the nation’ and of ‘a standard of justice worthy of the nation. It prescribes that, ‘equality should prevail in all things’.

Copyright Business Recorder, 2023