ISLAMABAD: Chief Justice-desig­nate Qazi Faez Isa believes that Chief Justice of Pakistan (CJP) Umar Ata Bandial has put other judges of the Supreme Court into “unnecessary dilemma”, though being the head of the top court he should have desisted from doing so.

In a 30-page statement issued in Urdu, Justice Isa regretted he had no choice but to emphasise that constitutional institutions, such as the Supreme Court, should not be left on the whims and caprice of an individual by making it a “one man show”.

Earlier notes and orders have been attached with the statement.

This is the same statement that Justice Isa read out in the open court on Thursday before declaring the nine-judge bench, of which he was then a part, not a properly constituted court.

30-page statement says SC must not be left on the ‘whims of an individual’

After reading the statement on Thurs­day, Justice Isa had stood up from his seat, saying he was not recusing (withdrawing) but he would not sit on the bench either.

The statement which, according to sources, was uploaded on the SC’s website but later removed, said it was necessary to explain that since April 14 when the enforcement of the Supreme Court (Practice and Procedure) Act 2023 was suspended, he chose not to sit on the bench rather engaged himself in chamber work.

“Since I do not want to violate the order to suspend the law, therefore until the court decides about the vires of the law, I will not sit on the benches,” Justice Isa observed, adding if he hears the present case [challenge to the trial of civilians in military courts] as being part of the nine-judge bench then he would himself be violating the law, which he believes was constitutional and legal.

He said Section 2 of the Supreme Court (Practice and Procedure) Act 2023 applies only to the CJP and two senior most judges of the apex court and that was the reason that Justice Sardar Tariq Masood had also avoided to sit on the benches in the beginning when the law was enacted.

But later Justice Masood decided to continue hearing the cases since the backlog of the cases was rising, but he chose not to hear cases which were filed while invoking Article 184(3) of the Constitution that deals with the enforcement of fundamental rights.

“We both respect the point of view of each other,” Justice Isa said, adding that being the most senior judge of the Supreme Court, it was his responsibility to keep the direction straight. “Until today, CJP has not contradicted my point of view rather did not even care to respond to my opinion,” Justice Isa regretted.

The statement also referred to the May 19 appointment of Justice Isa as head of the three-man judicial commission to inquire into audio leaks, but a bench of the Supreme Court, headed by the CJP, had stayed its proceedings. And despite the fact that one of the audio leaks also concerns a relative of the CJP, the case was again taken up on May 31 but later adjourned without assigning a new date of hearing.

Since the commission was also issued a notice, therefore a concise statement was submitted before the bench through its secretary in which Section 2 of the practice and procedure law was highlighted, emphasising the need for setting up a committee of three senior judges to constitute the benches rather than leaving it to the CJP’s discretion.

Justice Isa explained that CJP had put him into a quandary from which he could only come out when the petitions instituted against the vires of the practice and procedure law were decided or at least the stay granted against the enforcement of the law was withdrawn.

Published in Dawn, June 24th, 2023