ISLAMABAD: Two Supreme Court judges who were on the initial nine-judge bench formed to take up petitions against military courts issued separate notes late Tuesday evening, with Justice Sardar Tariq Masood stating he had not recused from the larger bench, whereas Justice Syed Mansoor Ali Shah said he decided to sit on the new seven-judge bench with certain reservations.

The chief justice had formed a nine-judge bench on June 21 to hear appeals against military trials of civilians. However, when proceedings began the next day, Justice Qazi Faez Isa called for first settling the dispute over the formation of benches, and Justice Masood endorsed his view.

The bench was then reduced to seven judges. Days later, it was further cut to six members after Justice Shah recused himself after the government’s objections.

In his note on Tuesday, Justice Masood endorsed Justice Isa’s point of view and explained he was not consulted by CJP Umar Ata Bandial before his name was included on the bench.

Justice Masood says he wasn’t consulted before inclusion in bench hearing pleas against military courts; Justice Shah says decided to stay ‘with reservations’

He said that, surprisingly, these petitions had been fixed when just a day earlier one of the petitioners and his counsel met the chief justice in his chamber and on the next day these petitions were fixed without any consultation or ascertaining his availability.

“I was awaiting the decision in the petitions through which the Supreme Court (Practice and Procedure) Act 2023 have been challenged and expected that they would be decided soon as interim ex-parte stay order suspending the operation of the act,” he said.

When the stay order was passed against the act, Justice Masood said, he was reluctant to sit on a bench till the final decision of the petitions in which the act was challenged. But as he was heading a bench in which about 30 to 35 criminal cases used to be fixed daily of the citizens, who were in jail and waiting for the decision of their petitions/appeals against their conviction, he kept on dealing with the criminal work but requested the CJP for early disposal of the petitions filed against the act, Justice Masood said.

He regretted that these challenges against the military court trials had been filed by those who apparently were not detained nor facing trial with regard to the offences allegedly committed on May 9.

If a law was challenged, usually it was before the high court under Article 199 of the Constitution, he said. However, the petitions in question had been filed under Article 184(3), whose jurisdiction could only be invoked in the public interest to enforce fundamental rights, he said.

Justice Masood made it clear that he had not recused from the bench, hence there was no question to sign the purported order in which it had been mentioned that a new bench of seven judges would be formed, whereas his point of view was that these petitions be heard after the decision of the said petitions which had been filed against the act.

Meanwhile, Justice Mansoor Ali Shah explained that in the recent past, there had been a consistent pattern and reluctance of not forming a full court consisting of all judges but special benches of some judges in cases of immense public importance that have far-reaching impact on the political, social and economic life of citizens and their fundamental rights.

“The non-formation of the full court bench, in my opinion, has severely undermined the authority of the court and the legitimacy of its judgments,” Justice Shah regretted, adding that the constitutional significance of the matter involved in the present case and its potential ramifications called for the highest level of judicial scrutiny.

Published in Dawn, July 5th, 2023