ISLAMABAD: Justice Qazi Faez Isa, senior most puisne judge, Thursday said he cannot sit in a bench of the Supreme Court unless the verdict is announced in Supreme Court (Practice and Procedure) Bill 2023 case.

A nine-member bench, headed by Chief Justice Umar Ata Bandial, Justice Faez Isa, Justice Sardar Tariq Masood, Justice Ijazul Ahsan, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yayha Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, and Justice Ayesha Malik assembled in Courtroom No1 for hearing of petitions against trials of civilians under Army Act, 1952.

At the onset of the hearing, Justice Faez clarified that last night (Wednesday) I was apprised that my name has been included in the bench set up for hearing the petitions.

Justice Faez stated that according to the SC Practice and Procedures law, the benches are supposed to be constituted by a committee mentioned in Section 2 of the Act. However, on April 13 before the law become Act an eight-member bench stayed its operation. The bench declared; “The moment Supreme Court (Practice and Procedure) Bill, 2023 receives the assent of the President or it is deemed that such assent has been given, then from that very moment onwards and till further orders, the Act that comes into being shall not have, take or be given any effect nor be acted upon in any manner.”

Justice Faez stated that they have taken an oath to defend and protect the Constitution and perform the function in accordance with the Constitution and the law. He said he did not consider “this bench, a bench”. He also said that he could not be a part of any bench until the case relating to the Supreme Court (Practice and Procedure) Bill 2023 — which aims to deprive the office of the chief justice of Pakistan (CJP) of powers to take suo motu notice in an individual capacity and which has since become law — was decided.

Justice Tariq Masood fully endorsed Justice Qazi Faez’s objections and also refused to sit in the larger bench until the verdict on the Supreme Court (Practice and Procedure) Act 2023. Following that the members of the bench left the courtroom and after an hour seven-judge bench excluding Justice Faez and Justice Tariq heard the petitions.

An eight-member bench on June 8 had adjourned for an indefinite time the hearing of petitions filed against the Supreme Court (Practice and Procedure) Act, 2023. The court had put off the hearing after Attorney General for Pakistan Mansoor Awan had told the top judge that the government wanted to harmonise two pieces of legislation related to the apex court— the Supreme Court (Practice and Procedure) Act, 2023 and the Supreme Court (Review of Judgements and Orders) Act, 2023 but could not do that so far.

Justice Faez said a three-judge bench, headed by him, with the majority 2-1 passed an order. He said; “I was “shocked, hurt and deeply concerned” after the SC Registrar, Ishrat Ali on CJ Bandial’s orders had “disregarded” an order authored by him ordering the postponement of all suo motu cases until amendments in the SC rules about the constitution of special benches.”

Justice Faez lamented that later a six-member bench recalled the interim order and, in particular, the “taking down” of a note from the SC’s official website he had written expressing his reservations over the said verdict. “Issuance of circular by Registrar Supreme Court shows the power of SC,” Justice Faez said.

Justice Faez also observed that “an inquiry commission was formed which was prevented from working further by a five-member bench.” “But,” he said, “the inquiry commission was not served any notices nor was it asked to submit any explanations”.

Justice Faez then brought to the court’s attention the fact that it was also during this period that CJP Bandial had formed an eight-judge larger bench to review the Supreme Court (Practice and Procedure) Act 2023.

Justice Masood endorsed Justice Faez’s reservations questioning that “should the law be deemed “correct”, then what would happen to the appeals on this case?” “Until a verdict on the law does not come, I do not accept this bench as a court,” Justice Faez said.

Copyright Business Recorder, 2023