ISLAMABAD: President of the Supreme Court Bar Association (SCBA) Lateef Afridi on Tuesday said that with the exclusion of three dissenting judges, the hearing by the present six-judge bench in the Justice Qazi Faez Isa review case would invariably give rise to the perception that dissident judicial voices were being silenced.

In a written submission before the Supreme Court, the SCBA president argued that hearing by judges in lesser number would naturally give rise to the questions of transparency and impartiality, whether well-founded or ill-founded.

Although the six-judge bench headed by Justice Umar Ata Bandial had closed the hearing on Dec 10, it had allowed Lateef Afridi to furnish his submission in writing.

In his submission, Mr Afridi cited 1924 R Versus Sussex Justices, in which ex parte McCarthy Lord Chief Justice Hewart of England and Wales famously pronounced: “It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

Afridi says hearing by judges in lesser number will give rise to questions of transparency

What is remarkable is that this landmark ruling, which survives till this day, arose out of a minor collision case where the fine was just 10 pounds with costs. Yet, the SCBA president recalled, the King’s Bench issued a rule nisi and ultimately quashed the conviction merely because the deputy clerk was also present at the deliberations in the chamber of the Sussex Justices.

Thus at this junction, keeping the very real public perception of dissident judicial voices being silenced in mind and the fact that the eyes of the entire nation are upon this court, the Supreme Court must decide with respect to the exercise of its judicial discretion if the fate of the constitution of the bench hinges on it an answer to the question.

In conclusion, Mr Afridi stated, it could be said that the chief justice had no discretion to constitute a lesser bench as far as the number of judges of the review bench was concerned because judgement/order of the majority was the judgement/order of the court.

Moreover, the chief justice does not have much discretion when the same judges are physically available and practice of the court is no different, he argued, adding that if after reasonable efforts the presence of a judge/judges of the original bench cannot be ensured then exceptionally other judges could be made part of the review bench.

The circumstances of every case might differ, he said, adding that in the present case all the judges were available except the one who recently retired.

Finally, if the court does come to the conclusion that under the circumstances it has discretion then that discretion in a case like this ought to be used where it “does most credit to the nation”, the SCBA president added.

By not making at least three dissenting judges part of the review bench is actually denying the petitioner judge the right of actually having a chance of the decision being recalled or overturned in the review, he said.

For instance, he said, if the original bench is constituted in the present case and at least three judges in the majority opinion decide to change their view in favour of the petitioner then original judgement can be recalled, adding that with the current constitution of the bench this has no chance of happening.

Mr Afridi said the current constitution of the bench puts the petitioners at a disadvantage from the beginning and hence violative his/her right to fair trial, while incorporating Article 10-A in the condition and making the right to fair trial, a fundamental right, the legislature did not define or describe the requisites of a fair trial, perhaps the intention was to give it the same meaning as is broadly universally recognised and embedded in jurisprudence in Pakistan.

More importantly it is also submitted that this is not utopia and the phrase justice must be seen to be done does matter in every justice system, especially in such a highprofile case as eyes of the whole nation and entire legal community are on it.

Therefore, he contended, this court or the chief justice when faced with the exercise of discretion as opposed to strict application of law, meaning there is hardly any discretion, then the discretion must be exercised in favour of the interpretation that enhances the good perception of “our justice system in the eyes of the nation and legal community”.

The SCBA president said it is vital to clarify here that perception of the justice system is based primarily on two things: perception of the courts and perception of the law. Negative perception of the court, resulting in lack of public trust, does more damage to the justice system than negative perception of the law. For example, he said, where the court has discretion to interpret certain laws or rules then it must do so in a way that enhances perception of the justice system, especially when the decision will improve perception of the court.

Published in Dawn, December 16th, 2020