ISLAMABAD: Another judge of the Supreme Court has declared the order of

Chief Justice of Pakistan Mian Saqib Nisar, who is going to doff his robes on
January 17, about reconstituting a bench of the Peshawar registry in the middle
of a hearing void and non-est.

In the absence of any recusal from any member of the bench, the reconstitution
of a smaller bench by removing a judge (Justice Qazi Faez Isa), who had
questioned the exercise of suo motu powers, would amount to stifling the
independent view of the judge that could shake the foundations of a free and
impartial justice system, observed Justice Syed Mansoor Ali Shah in a six-page
strongly worded order.

He said his order be read into other cases fixed before the three-member bench
on 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 again to be constituted by the chief justice and record of the court must
reflect the correct status of these cases,” the order stated.

Judge’s removal from SC bench after he questioned legality of suo motu

proceedings amounts to shaking the foundation of impartial justice system,
observes Justice Mansoor Ali Shah

Justice Shah agreed with the viewpoint expressed by Justice Isa who had raised
objection to the reconstituting of the smaller bench whilst hearing the case in
March 2018. The bench comprising Justice Isa, Justice Shah and CJP Nisar was
reconstituted after Justice Isa questioned the legality of the proceedings related
to hospital waste. Justice Isa was excluded from the reconstituted bench that
comprised Justice Shah and the CJP.
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In a separate note, Justice Isa had objected to the exercise of Article 184(3) of
the Constitution by holding that before exercising its original jurisdiction, the SC
must satisfy itself that the jurisdiction it is assuming accords with the
Constitution. Justice Isa had also held that he was constrained to write this,
since not doing so would weigh heavily on his conscience and he would be
abdicating his responsibility as a judge.

Now Justice Shah in a separate note admitted that his sitting on the
reconstituted two-member bench was a mistake and having realised that after
examining the legal position, he did not sign the orders passed by the
reconstituted bench but as a junior member of the bench, awaited for the CJP to
pass an appropriate order in response to the reaction of Justice Isa. He waited
for the appropriate order by the CJP to respond to the note of Justice Isa by
explaining the reasons of the reconstitution of the smaller bench on that day,
Justice Shah observed. But no such order was passed till date and the case had
been incorrectly reflected in the bench disposal statement as an adjourned case,
Justice Shah recalled.

“The chief justice is retiring on Jan 17, therefore, I feel constitutionally obligated,
as a member of the bench, to express my views regarding the order of brother
[Justice Isa] and to pass my order in this case for May 19, 2018 when it came up
for hearing before the bench.”

In his opinion, Justice Shah explained, a bench once constituted and is seized of
a matter on the judicial side, cannot be reconstituted by the chief justice in
exercise of his administrative powers, unless a member of the bench withdrew
himself from the bench.

Thus the reconstitution of the bench on that day was unwarranted and
unprecedented and undermined the integrity of the judicial system, wrote
Justice Shah.

In the absence of a recusal by a member of the bench, Justice Shah observed,

any amount of disagreement amongst members of the bench on an issue before
them, could not form a valid ground for reconstitution of the bench. And any
reconstitution of the bench on this ground would impinge on the constitutional
value of independence of the judiciary, he added.

“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,” Justice Shah said, adding this judicial freedom was foundational
to the concept of rule of law. Thus the reconstitution of the bench while hearing
the 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
and 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, he feared.

“This erodes the public confidence on which the entire edifice of judicature
stands,” he stated. Public confidence was the most precious asset that this
branch of the state (judiciary) had, Justice Shah stated, adding it was also one of
the most precious assets of the nation.
Citing from international jurisdictions, Justice Shah recalled how Prof Ahraon
Barack pointed out that a judge ought to be aware of his power and the limits
thereof. “Naturally, the judge knows the law and the power it grants to the
judge, but he must also learn the limits imposed on him as a judge.”

Also, a judge must recognise his mistakes, Justice Shah said, adding that like all
mortals judges erred but a judge must admit this.

While quoting Justice Jackson’s statement “we are not final because we are
infallible, but we are infallible only because we are final”, Justice Shah stated: “I
think the learned judge erred. The finality of our decision is based on our ability
to admit our mistakes and our willingness to do so in appropriate cases.”

Justice Shah also cited ‘The Charter of Rights and Freedom: A Judicial
Perspective’ in which McLachlim Beverly noted that if judges admitted their
mistakes they would strengthen public confidence in the judiciary. Besides, he
said, in writing and thinking, judges must “display modesty and an absence of
arrogance”. Statements such as those of Chief Justice Hughes that “we are under
the Constitution, but the Constitution is what the judges say it is” are not merely
incorrect but also perniciously arrogant, Justice Shah observed.

He said his order be read into other cases fixed before the three-member bench
on 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 again to be constituted by the chief justice and record of the court must
reflect the correct status of these cases,” the order said.

Published in Dawn, January 13th, 2019

ISLAMABAD: Expressing concern over the sudden ‘reconstitution’ of a Supreme
Court bench, Justice Qazi Faez Isa said he was unceremoniously excluded from
the three-member bench of the Peshawar registry after he raised a question
over the legality of the proceedings related to hospital waste.

The judge, in a note authored on May 8, pointed out that excluding a bench
member while he was examining the legality of the proceedings under Article
184(3) of the Constitution “undermines the integrity of the system and may
have serious repercussions”.

Justice Isa was of the opinion that the Supreme Court before exercising powers
under Article 184(3) must satisfy itself that the matter is of “public importance”
and related to “fundamental rights”. The note also highlighted some other insta-
nces where the proceedings under the same article had been initiated without
completing the constitutional requirements.

The matter related to hospital waste was being heard by a three-member bench
of the Supreme Court’s Peshawar registry comprising Chief Justice of Pakistan
Mian Saqib Nisar, Justice Qazi Faez Isa and Justice Mansoor Ali Shah when the
CJP suddenly rose and announced that the bench would be reconstituted.

The ‘controversy’ surrounded the reconstitution of the SC bench shortly after

Justice Isa had raised the question about the legality of the proceedings under
Article 184(3) of the Constitution.
Says he was unceremoniously excluded from the Peshawar registry bench after
he questioned legality of proceedings

Justice Isa in his note wrote that the powers that the Constitution granted to the
Supreme Court could not be assumed by the director of human rights cell of the
apex court.

“The approval of Hon’ble Chief Justice is also not a substitute for an order of
Supreme Court.”

According to Justice Isa’s note, the same director HRC had written similar notes
earlier which never indicated whether the SC had satisfied itself that the above-
mentioned two conditions had been met.

“However, before Article 184(3) could be read, the Hon’ble Chief Justice
intervened and said that he will be reconstituting the bench and suddenly rose
up,” said the learned judge.

He added: “The bench was then presumably reconstituted, I say presumably

because no order was sent to me to this effect. However, a two-member bench
did assemble later from which I was excluded.”

Justice Isa showed his displeasure as he went on to state, “This for me is a

matter of grave concern. In my humble opinion, it is unwarranted and
unprecedented to reconstitute a bench, in such a manner, whilst hearing a case.
To do so undermines the integrity of the system and may have serious
repercussions.”
In his note, Jutice Isa advised, “Before exercising its original jurisdiction the
Supreme Court must satisfy itself that the jurisdiction it is assuming accords
with the Constitution. However, even before any opinion could be expressed
thereon the matter was cut short as mentioned above.”

In the concluding paragraph, Justice Isa explained reason for writing the note, “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.”

The SC’s human rights cell director on April 12 had placed a two-page note on
record stating: “It is submitted that your honour [the CJP] has desired to call [a]
report with respect to disposal of infectious hospital wastes in province of KPK.
In view of above, if approved, notices be issued to Advocate General, Chief
Secretary, Secretary Health and Secretary Local Government, and Secretary
Environment Protection Agency (EPA) KPK to appear in person on April 19,
2018.”

“The second page in the file is a copy of the notice issued to those mentioned in
the director’s above note,” disclosed the Justice Isa’s note.

It went to state, “Due to complete lack of material on file and to understand the
genesis of the case, I enquired whether the said director was present in court so
we could examine the file (if any) containing the material (if any) on the basis of
which he [the HRC director] had written the aforesaid note, and whether the
original jurisdiction of Supreme Court under Article 184 (3) of the constitution
could be invoked. The learned Advocate General of the province (who was
standing at the rostrum) was asked to read Article 184 (3).”
However, Justice Isa said even before any opinion could be expressed the matter
was cut short as the CJP intervened and said the bench would be reconstituted.
He was of the opinion that this unprecedented way of reconstituting the bench
undermined the integrity of the system and could have serious repercussions.

Published in Dawn, May 13th, 2018