ISLAMABAD: Justice Qazi Faez Isa on Saturday hoped and prayed that the Supreme Court would stand unwaveringly against all manners of constitutional violations and safeguard the people against misuse of power.

In a strongly worded 28-page dissenting note, Justice Faez Isa also expressed the hope that unstructured discretion would be curtailed since it had neither served any institution nor the interest of people, adding that the most resilient and finest institutions were those where candour, transparency and legitimate dissent existed.

The dissenting note is a continuation of the Feb 11 order in which a five-judge SC bench headed by Chief Justice Gulzar Ahmed had barred one of its members — Justice Isa — from hearing the cases concerning Prime Minister Imran Khan. The bench was hearing the proposed distribution of uplift grant of Rs500 million each among the PTI lawmakers.

“The tug of war between the senior members of the top judiciary is bringing down, rather compromising, the prestige and honour of the highest institution of justice,” regretted a senior law officer on condition of anonymity.

Senior judge writes dissenting note on Feb 11 order barring him from hearing cases concerning prime minister

Also, Barrister Taimur Malik, an international law expert, said in a tweet: “Pakistan has passed through phases of Judicial Acquiescence, Judicial Activism, Judicial Imperialism and (briefly) Judicial Restraint. Where are we headed now!”

Justice Isa expressed his disappointment by stating that a non-issue was raised by the chief justice and, without hearing him, unilaterally decided that he might be biased and lack impartiality. “Thus in an unprecedented fashion and without any evidence or without any recourse to petition or appeal, the reputation of a judge of the Supreme Court was tarnished,” Justice Isa bemoaned.

Consequently, credibility and integrity of the judiciary has also been undermined, he regretted in the dissenting note, dubbing the Feb 11 order by four senior judges of the apex court something that did not meet the stipulated criteria to constitute a legal order of a decision in terms of Article 189 of the Constitution and thus contrary to the rules of natural justice, the Constitution, impartiality and fair play and undermined this court.

“The appraisal and review of the decisions of this court dating back to the 1950s show that to be properly categorised as an ‘order’ or a ‘judgment’, reasons therein must be given, adjudication should take place after a careful consideration of the facts and the law and the decision made only after giving the affected party an opportunity of being heard,” he emphasised.

The Feb 11 order did not state which particular jurisdiction was exercised, he said, observing that if the court assumed jurisdiction which it did not have, such an action or order was liable to be struck down.

Justice Isa explained that Imran Khan’s person and the office of prime minister were two different things and were not interchangeable since the prime minister was the head of the federal government and even the head of the state (the president) in most matters acted on his advice. If the Feb 11 order was implemented, it would mean that a judge of the Supreme Court can only hear cases of private civil disputes because even in criminal cases the state is always a party.

On bias, Justice Isa observed that he did not personally know Imran Khan and, therefore, he could not possibly have a bias against him as the prime minister. “I am more than capable of adjudicating impartially and without bias”, failing which, he would violate the Constitution, his oath, his conscience and his faith, he said. “My brethren [other judges] are not my conscience keepers, nor am I theirs.”

Justice Isa regretted that if Imran Khan wanted to make allegations of bias against him, the premier had to do so himself but Attorney General for Pakistan Khalid Jawed Khan was not the personal lawyer of the prime minister nor could the chief justice extend support to the prime minister or restrain the judge nor the Constitution or law permitted judges to look into the hearts of colleague judges and determine whether they suffered from biasness and lack of impartiality. “Almighty Allah alone knows what is in the hearts.”

Justice Isa also recalled how he wrote a letter to the chief justice to object to the constitution of the five-judge bench in which Justice Maqbool Baqar was not included despite the fact that the judge was part of the two-judge bench which had requested the CJP to constitute a larger bench. But, he regretted, the CJP did not respond to the letter.

“This court often castigates arbitrary exercise of discretion, yet in constituting benches hearing important constitutional matters unstructured discretion is exercised,” Justice Isa regretted. “This recurrent issue has been left unattended by the chief justices and not made into an agenda item for full-court meetings,” he observed, adding that the apex court was the final arbiter of all disputes and the custodian of the Constitution and was tasked with ensuring that the executive did not overreach or act contrary to the Constitution.

“If the executive’s transgressions are not checked, and instead benches are reconstituted and judges restrained, the people suffer,” he observed.

Justice Isa also highlighted 20 improprieties and illegalities in the Feb 11 order, saying that without informing the two-member bench, which was already hearing the matter, the CJP decided to reconstitute the bench, expand it and exclude Justice Maqbool Baqar from it, no one had alleged bias or lack of impartiality against any judge on the bench, and without consulting his colleagues on the bench, the chief justice tersely announced that a judge should not hear any case involving the prime minister; the CJP arbitrarily introduced a non-issue — bias and lack of impartiality on the part of a judge on the bench, who was not made privy to the written order.

Likewise, the order was sent to a junior judge while the said judge, his senior, was bypassed; the order of the court was not written and thus, not signed and, therefore, there is no order of the court and the matter remains pending.

Justice Isa said the Feb 11 order was uploaded on the website before a judge had seen it, let alone had the opportunity to agree/disagree with it; the order and case file were not sent, in accordance with longstanding established practice, to him, who learnt it through the media and had to write to the registrar seeking the order and case file.

Moreover, the restraining paragraph of the order contravenes the oath of judges, contrary to the Islamic principles, contrary to the settled jurisprudence.

The anomalies also pointed out that the prime minister’s reported statement said that money from the public purse would be disbursed for apparent political patronage at a time when the Senate elections were on the horizon and, therefore, notice was issued by the two-judge bench earlier; however, without a proper determination, and without ascertainment of the veracity and effect of the documents he produced about the release of development funds in constituency No 65, the matter was abruptly disposed of.

“What commenced as an attempt to prevent corrupt practices and bribery ended with a judge being rebuked and restrained,” Justice Isa regretted, adding that submitting a resignation letter was contemplated, but then he remembered that this was not about a judge and his mistreatment.

“It is about something far more important; the Constitution, the peoples’ rights and their monies. All of which I have, with Almighty Allah’s help and grace, endeavored to protect and will (Insha’Allah) continue to do so,” Justice Isa observed.

Published in Dawn, February 21st, 2021