Justices Isa and Masood have raised concerns about the
composition of the bench, stating that it violates the SC Practice and
Procedure Act of 2023.
A nine-member bench was dissolved
and replaced by a seven-member bench, which resumed the hearing of petitions
challenging the trials of alleged May 9 rioters in military courts. Justices
Qazi Faez Isa and Sardar Tariq Masood had expressed serious reservations,
leading to the change in the bench composition.
In response to the chief
justice's inquiry, the attorney general was asked to provide detailed
information about all individuals, including women and juveniles, who were
detained by civilian and military authorities following the May 9 riots.
Justice Bandial emphasized that
lawyers should not face harassment, and journalists who were arrested should be
released.
The chief justice pointed out
several objections to military courts, such as the absence of public hearings,
lack of legal representation, the judiciary's independence being compromised,
and inadequate court facilities.
Justices Isa and Masood, both
senior judges of the apex court, clarified that they were not recusing
themselves from the proceedings but refused to participate in the larger bench
until a verdict was announced regarding the Supreme Court (Practice and
Procedure) Act of 2023.
Consequently, Chief Justice Umar
Ata Bandial reduced the bench size to seven members, who would continue
presiding over the hearing scheduled for 1:30 pm.
Notably, the hearing of petitions
against the Supreme Court (Practice and Procedure) Act of 2023, which aims to
limit the powers of the chief justice of Pakistan, has been adjourned
indefinitely.
During the hearing, Justice Isa
raised concerns about the constitution of benches, citing the SC Practice and
Procedure law that mandates bench formation through a meeting.
Justice Isa expressed shock and
concern when the registrar of the top court, Ishrat Ali, on the orders of CJ
Bandial, "disregarded" a judgment authored by Justice Isa, which
called for the postponement of all suo motu cases until amendments to the SC
rules regarding the constitution of special benches were made.
The order, written by Justice
Isa, highlighted that the Supreme Court Rules of 1980 neither permit nor
envision special benches, although a Special Bench of three judges was
constituted for that specific case.
The majority order stated that
the Supreme Court comprises the chief justice and all judges, and the chief
justice cannot unilaterally and arbitrarily decide such matters, as it goes
against the Constitution.
The SC registrar later argued that
the order violated rules established by a five-member judgment, but Justice Isa
maintained that the registrar was, in fact, violating the constitution.
During the proceedings, Justice
Isa also criticized a six-member bench's decision to recall the interim order
and the removal of his note from the official website expressing reservations
about the verdict.
Justice Isa remarked on the power
of the Supreme Court displayed through the issuance of circulars by the
registrar.
He further highlighted that an
inquiry commission, which was prevented from continuing its work by a
five-member bench, had not been served notices or asked for explanations.
Justice Isa drew attention to the
fact that during this period, Chief Justice Bandial had formed an eight-judge
larger bench to review the Supreme Court (Practice and Procedure) Act of 2023.
Legal analysts have noted that
the chief justice included like-minded judges in the bench that suspended the
law aimed at regulating the chief justice's discretionary powers regarding
bench composition and case listing.
It is interesting to note that
since the enactment of the SC Practice and Procedure Act of 2023, Justice Isa
has been solely engaged in chamber work and has not been hearing cases. When
Chief Justice Bandial inquired about his availability for a bench, Justice Isa
explained the reasons for not sitting on the bench.
During today's proceedings,
Justice Isa expressed his surprise at the cause list, which stated that the SC
procedures law had been blocked after being granted only the status of a bill.
"I cannot be a part of this
bench unless a verdict on the Practice and Procedures law is announced,"
he stated. Justice Masood supported Justice Isa's reservations and questioned what
would happen to the appeals in this case if the law is deemed correct.
"I do not consider this
bench as a court until a verdict on the law is delivered," Justice Isa
asserted.
Following this, the chief justice
called for the Attorney General of Pakistan and the counsels of the petitioners
into his chamber. Later, it was announced that a seven-member bench would
continue hearing the case in the afternoon.
