ISLAMABAD: The Supreme Court on Monday re-fixed the hearing of challenges to the filing of the presidential reference against Justice Qazi Faez Isa on Oct 28, apparently in a change of heart after informing his counsel that they would request the chief justice for the reconstitution of a full court.

The decision to continue with the hearing from next week was taken when the 10-judge full court, headed by Justice Umar Ata Bandial, was informed that Justice Mazhar Alam Khan Miankhel, who was unavailable for hearing on Monday, would resume his duty next Monday.

If the matter had been sent back to Chief Justice Asif Saeed Khosa, this would have been the second such referral in the past five weeks for the reconstitution of the full court.

In the morning when the bench members settled down for the hearing, Justice Bandial, while pointing towards Advocate Muneer A. Malik, the counsel for Justice Faez Isa, observed that the court was keen to proceed with the matter, but one of the members of the bench was not available to join the hearing in the wake of death in his family.

Justice Bandial said the judge had requested for weeklong absence and the bench members after consulting with each other decided that it would not be appropriate to proceed with the matter. “Therefore, we are referring the matter back to the chief justice for the reconstitution of the bench, the outcome of which will be found out by the lawyer soon,” he added.

Bench informed about weeklong absence of member

At this, the counsel said he would like to place his argument after the constitution of the full court.

But Justice Bandial said it was not the counsel’s choice; it was out of courtesy that the bench decided to inform the counsel. “We are rising from the bench now and hopefully will be meeting soon,” he observed before retiring for the day.

The second referral to the chief justice within five weeks sparked a controversy, with seemingly disturbed lawyers’ representatives rejecting the move and describing it as something that smacked of justice being compromised.

“When there is no formal recusal by a judge of the Supreme Court, then why the matter has been referred to the chief justice for the reconstitution of the bench?” asked Pakistan Bar Council (PBC) vice chairman Syed Amjad Shah. He said the formation of a new bench instead of the current bench would not be acceptable at any cost and would be contrary to the ends of justice.

Earlier on Sept 17, the matter was referred back to Chief Justice Khosa when Justice Sardar Tariq Masood and Justice Ijaz-ul-Ahsan had withdrawn themselves from a seven-judge SC bench. Subsequently, Advocate Malik had sought the constitution of a full court comprising eligible judges. The chief justice had on Sept 20 constituted the 10-judge full court, headed by Justice Bandial, to resume the hearing of the challenges to the presidential reference against Justice Isa.

Shortly after the proceeding, the lawyers consulted with each other and decided to express their concern before the media.

The PBC vice chairman said that as the full court had already heard the case at some length, it would not be proper to reconstitute a new bench and commence the hearing afresh.

Senior counsel Hamid Khan, representing the Supreme Court Bar Association and PBC, also asked the court to stick to its tradition of not changing the composition of the bench in the middle of the hearing. “We should not be impatient rather it would be fair and proper that we wait for the judge to come and rejoin the proceedings,” he said.

He also referred to the 1978 appeal of Zulfikar Ali Bhutto, when the bench was constituted in the middle of the hearing after waiting for 21 days because one of the judges, Waheeduddin, had fallen ill. “We will not accept any addition or subtraction of the judge from the current full court,” Mr Khan remarked.

Former SCBA president Ali Ahmed Kurd said: “Heavens will not fall if the hearing commences after a week when the judge resumes the proceedings.” He said that even the court rules did not grant ample authority to the chief justice to change the bench in the middle of the hearing.

Senior counsel Rasheed A. Razvi cited Justice Mansoor Ali Shah’s judgement in which he had held that a bench once constituted and seized with a matter on the judicial side could not be reconstituted by the chief justice in exercise of his administrative powers, unless a member or members of the bench recused themselves from hearing the case.

“What is the hurry?” Advocate Razvi wondered, recalling that the hearing of former chief justice Iftikhar Mohammad Chaudhry’s petition against the filing of the reference on misconduct commenced on May 15, 2010 and continued till July 20.

The lawyers also requested the SC to postpone the hearing of the case till the SCBA elections scheduled for Oct 31, explaining that they would move an application with the same request otherwise.

Justice Isa’s plea

Meanwhile, Justice Isa in a three-page application, moved through his counsel, explained before the SC that the reconstitution of the full court would be inappropriate and contrary to the settled procedure. Once the hearing of the cases had commenced with the 10-judge bench, the same judges must hear these part-heard cases till its conclusion.

The application said that serious allegations of impropriety and fixing of cases and constitution of benches had already been made against the registrar. While the registrar had to ensure that these cases were fixed on a date when all the judges of the bench hearing the matter were present, he did not do so, the applicant added.

Published in Dawn, October 22nd, 2019