ISLAMABAD: Expressing concern over the sudden ‘reconstitution’ of a Supreme Court bench, Justice Qazi Faez Isa said he was unceremoniously excluded from the three-member bench of the Peshawar registry after he raised a question over the legality of the proceedings related to hospital waste.

The judge, in a note authored on May 8, pointed out that excluding a bench member while he was examining the legality of the proceedings under Article 184(3) of the Constitution “undermines the integrity of the system and may have serious repercussions”.

Justice Isa was of the opinion that the Supreme Court before exercising powers under Article 184(3) must satisfy itself that the matter is of “public importance” and related to “fundamental rights”. The note also highlighted some other insta­nces where the proceedings under the same article had been initiated without completing the constitutional requirements.

The matter related to hospital waste was being heard by a three-member bench of the Supreme Court’s Peshawar registry comprising Chief Justice of Pakistan Mian Saqib Nisar, Justice Qazi Faez Isa and Justice Mansoor Ali Shah when the CJP suddenly rose and announced that the bench would be reconstituted.

The ‘controversy’ surrounded the reconstitution of the SC bench shortly after Justice Isa had raised the question about the legality of the proceedings under Article 184(3) of the Constitution.

Says he was unceremoniously excluded from the Peshawar registry bench after he questioned legality of proceedings

Justice Isa in his note wrote that the powers that the Cons­titution granted to the Supreme Court could not be assumed by the director of human rights cell of the apex court.

“The approval of Hon’ble Chief Justice is also not a substitute for an order of Supreme Court.”

According to Justice Isa’s note, the same director HRC had written similar notes earlier which never indicated whether the SC had satisfied itself that the above-mentioned two conditions had been met.

“However, before Article 184(3) could be read, the Hon’ble Chief Justice intervened and said that he will be reconstituting the bench and suddenly rose up,” said the learned judge.

He added: “The bench was then presumably reconstituted, I say presumably because no order was sent to me to this effect. However, a two-member bench did assemble later from which I was excluded.”

Justice Isa showed his displeasure as he went on to state, “This for me is a matter of grave concern. In my humble opinion, it is unwarranted and unprecedented to reconstitute a bench, in such a manner, whilst hearing a case. To do so undermines the integrity of the system and may have serious repercussions.”

In his note, Jutice Isa advised, “Before exercising its original jurisdiction the Supreme Court must satisfy itself that the jurisdiction it is assuming accords with the Constitution. However, even before any opinion could be expressed thereon the matter was cut short as mentioned above.”

In the concluding paragraph, Justice Isa explained reason for writing the note, “I am constrained to write this as not doing so would weigh heavily on my conscience and I would be abdicating my responsibility as a judge.”

The SC’s human rights cell director on April 12 had placed a two-page note on record stating: “It is submitted that your honour [the CJP] has desired to call [a] report with respect to disposal of infectious hospital wastes in province of KPK. In view of above, if approved, notices be issued to Advocate General, Chief Secretary, Secretary Health and Secretary Local Government, and Secretary Environment Protection Agency (EPA) KPK to appear in person on April 19, 2018.”

“The second page in the file is a copy of the notice issued to those mentioned in the director’s above note,” disclosed the Justice Isa’s note.

It went to state, “Due to complete lack of material on file and to understand the genesis of the case, I enquired whether the said director was present in court so we could examine the file (if any) containing the material (if any) on the basis of which he [the HRC director] had written the aforesaid note, and whether the original jurisdiction of Supreme Court under Article 184 (3) of the constitution could be invoked. The learned Advocate General of the province (who was standing at the rostrum) was asked to read Article 184 (3).”

However, Justice Isa said even before any opinion could be expressed the matter was cut short as the CJP intervened and said the bench would be reconstituted. He was of the opinion that this unprecedented way of reconstituting the bench undermined the integrity of the system and could have serious repercussions.

Published in Dawn, May 13th, 2018