ISLAMABAD: Justice Ijazul Ashan objected to the constitution of the benches for hearing of appeal against SC’s judgment on military courts, and the petitions of Justice Sayyed Mazahar Ali Akbar Naqvi against the Supreme Judicial Council notices.
Justice Ijaz, senior judge and a member of the Committee, constituted under Section 2 of the Supreme Court (Practice and Procedure) Act, 2023, for the formation of the benches, on Monday, wrote two letters – first one to the Chief Justice of Pakistan Qazi Faez Isa, and other to the Secretary of the Committee, and copied them to the judges of the apex court.
He stated in the letter to the secretary committee that a meeting of the Committee was held in the Chambers of the Chief Justice at 4:00 pm on Thursday 7th December 2023. “I attended the meeting being a member of the Committee. The agenda of the meeting (which was provided to me at about 02:30 p.m. after repeated phone calls) was; a) Fixation of cases mentioned in the list, b) Order of the Committee on the maintainability of the constitution petitions mentioned in the list; c) Fixation policy regarding the matters in which early hearing petitions are allowed.”
“When item No.1 of the agenda was discussed, it was agreed that since the judgment in, the matter of the trial of civilians by the military courts had been rendered by a five-member bench of this Court, a seven-member bench would be constituted to hear the appeals.
I categorically and in clear terms stated that in order to dispel any impression of pick and choose, all judges of this Court in the order of seniority be included in the appellate Bench. The Chief Justice agreed but said that he would ask the judges and if any judge does not want to sit on the Bench, the next available judge will be included.
The same principle was agreed for cases mentioned in Sr Nos. 3 to 6, with the difference that a three-member Bench would be constituted in the order of seniority. If any judge did not wish to sit on the bench the next in order of seniority would be included in the bench. It was agreed that after asking the proposed members of the two benches the members of the Committee will be informed.
“I waited all day on Friday for any information regarding the two Benches. At least three phone calls were made to you, but my office was informed that the file with your note had been sent to the Chief Justice of Pakistan. The last call was made at 06:30 p.m. when your office stated that you had left for the day.
“Neither the minutes of the 4th meeting nor those of the 5th meeting were sent to me on Friday or Saturday. Neither of the minutes have been seen or signed by me, yet these have been uploaded on the website of the Supreme Court of Pakistan.
As a member of the Committee, it is my right and duty to ensure that the minutes reflect accurately what was discussed in the meeting, what were the points of view of the members of the Committee and if there was any unanimity or a difference of opinion. The minutes of the 5th meeting prepared and uploaded by you must certainly fail to do so.
Section 2 of the Act provides as follows: Every cause, appeal or matter before the Supreme Court shall be heard and disposed of by a bench constituted by the Committee comprising the chief justice of Pakistan and two next senior most judges in order of seniority.”
The two special benches have not been constituted by the Committee. The same were never placed before the Committee in its 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. Further, as agreed in the meeting, a seven-member bench has not been constituted - instead a six-member bench has been notified. I am totally in the dark if any of the judges who are higher in the order of seniority had refrained from sitting on the bench.
The three-member bench constituted to hear petitions under Article 184(3) of the Constitution does not comprise judges in the order of seniority.
I have the greatest respect for each and every judge of this Court, but as a matter of principle and in the interest of transparency and to maintain the dignity and honour of this Court, the rule of seniority was agreed to be followed to hear these matters.
I have therefore written this note to set the record straight. In view of the fact that you have uploaded the minutes of the meeting without even showing them to me, let alone, getting my signatures, I expect that this note will also be uploaded on the website of the Supreme Court of Pakistan immediately.
In a letter written to Chief Justice Qazi Faez Isa, he stated that I received a Court Roster for the next week commencing Monday, 20 November 2023 to Friday 24th November 2023 at 06:00 pm on 16.11.2023. It has apparently been issued by the order of the Committee constituted under Section 2(1) of the Act 2023.
In the last meeting of the Committee held on 26.10.2023, Bench-III consisted of: Justice Ijazul Ahsan, Justice Jamal Khan Mandokhail, and Justice Muhammad Ali Mazahar.
Likewise, Bench-IV consisted of; Justice Mansoor Ali Shah, Justice Mazahar Ali Akbar Naqvi, and Justice Syed Hasan Azhar Rizvi
During the said meeting, it was agreed that the aforesaid benches will continue till the start of winter vacation i.e. 16-12-2023.
The constitution of benches appears to have been changed. After the meeting of 26-10-2023, no other meeting of the Committee has been held and I am surprised to note that a fresh Court Roster has been issued by the Additional Registrar (Judicial) today which states that the Court Roster has been issued by order of the Committee under Section 2(1) of the Act while no such meeting was held or order passed.
In the fresh Court Roster issued today, the constitution of Bench-III has been, changed: Justice Ijazul Ahsan, Justice Syed Hasan Azhar Rizvi, and Justice Irfan Saadat Khan.
The constitution of Bench-lV has also been changed which consists of; Justice Syed Mansoor Ali Shah and Justice Sayyed Mazahar Ali Akbar Naqvi.
Further, a new bench has been constituted consisting of; Justice Jamal Khan Mandokhail and Justice Muhammad Ali Mazhar.
The constitution of the other bench also appears to have been changed. It is pointed out that the Committee has never discussed or agreed upon this Court Roster or the fixation of cases before the benches. Such large-scale changes could not even otherwise have been undertaken by circulation specially when I was told that Justice Sardar Tariq Masood was, very unwell and could not attend the meeting of the Committee.
“I was asked by your lordship on 15-11-20231 if I was available for a meeting of the Committee on Thursday, 16th November 2023 at 04:00 p.m. and I had expressed my availability for the meeting. In the morning of 16-11-2023 again before Court proceedings started your lordship reminded me that we had a meeting of the Committee on November 16, 2023 at 04:00 pm and I stated that I will attend the meeting.
At around 12:00 noon again your lordship’s office confirmed to my office that we had a meeting at 4:00 p.m. and this was duly acknowledged by my office. However, at around 03:00 pm my office received a phone call from your personal secretary that you had asked that since Justice Sardar Tariq Masoad was unwell if I bad any objection to the meeting of Committee being postponed till next week.
“I stated that I had no objection to the meeting being postponed till next week. Therefore, the Court Roster issued in the evening of 16-11-2023 has been issued, without any meeting of the Committee. I may add that I have today around 12:00 noon, received for approval by circulation the Court Roster for the next week.
I notice that it is signed by the two other members of the Committee and that therefore, belatedly the Roster has been presented to me as a fait accompli. This is to say the least, most improper since I was available throughout for consultation and discussion. I do not therefore agree with this Roster.
“I, therefore, request that the fresh Court Roster having been issued in violation of Section 2 of the Act may be directed to be recalled and the original Court Roster as agreed by the Committee in its last meeting held on 26-10-23 which was required to be continued till 16-12-2023 may be accordingly continued.”
Copyright Business Recorder, 2023
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