ISLAMABAD: Another judge of the Supreme Court has declared the order of Chief Justice of Pakistan Mian Saqib Nisar, who is going to doff his robes on January 17, about reconstituting a bench of the Peshawar registry in the middle of a hearing void and non-est.

In the absence of any recusal from any member of the bench, the reconstitution of a smaller bench by removing a judge (Justice Qazi Faez Isa), who had questioned the exercise of suo motu powers, would amount to stifling the independent view of the judge that could shake the foundations of a free and impartial justice system, observed Justice Syed Mansoor Ali Shah in a six-page strongly worded order.

He said his order be read into other cases fixed before the three-member bench on that day and which were again fixed before the reconstituted two-member bench. “All those cases are to be put up for rehearing before an appropriate bench again to be constituted by the chief justice and record of the court must reflect the correct status of these cases,” the order stated.

Judge’s removal from SC bench after he questioned legality of suo motu proceedings amounts to shaking the foundation of impartial justice system, observes Justice Mansoor Ali Shah

Justice Shah agreed with the viewpoint expressed by Justice Isa who had raised objection to the reconstituting of the smaller bench whilst hearing the case in March 2018. The bench comprising Justice Isa, Justice Shah and CJP Nisar was reconstituted after Justice Isa questioned the legality of the proceedings related to hospital waste. Justice Isa was excluded from the reconstituted bench that comprised Justice Shah and the CJP.

In a separate note, Justice Isa had objected to the exercise of Article 184(3) of the Constitution by holding that before exercising its original jurisdiction, the SC must satisfy itself that the jurisdiction it is assuming accords with the Constitution. Justice Isa had also held that he was constrained to write this, since not doing so would weigh heavily on his conscience and he would be abdicating his responsibility as a judge.

Now Justice Shah in a separate note admitted that his sitting on the reconstituted two-member bench was a mistake and having realised that after examining the legal position, he did not sign the orders passed by the reconstituted bench but as a junior member of the bench, awaited for the CJP to pass an appropriate order in response to the reaction of Justice Isa. He waited for the appropriate order by the CJP to respond to the note of Justice Isa by explaining the reasons of the reconstitution of the smaller bench on that day, Justice Shah observed. But no such order was passed till date and the case had been incorrectly reflected in the bench disposal statement as an adjourned case, Justice Shah recalled.

“The chief justice is retiring on Jan 17, therefore, I feel constitutionally obligated, as a member of the bench, to express my views regarding the order of brother [Justice Isa] and to pass my order in this case for May 19, 2018 when it came up for hearing before the bench.”

In his opinion, Justice Shah explained, a bench once constituted and is seized of a matter on the judicial side, cannot be reconstituted by the chief justice in exercise of his administrative powers, unless a member of the bench withdrew himself from the bench.

Thus the reconstitution of the bench on that day was unwarranted and unprecedented and undermined the integrity of the judicial system, wrote Justice Shah.

In the absence of a recusal by a member of the bench, Justice Shah observed, any amount of disagreement amongst members of the bench on an issue before them, could not form a valid ground for reconstitution of the bench. And any reconstitution of the bench on this ground would impinge on the constitutional value of independence of the judiciary, he added.

“The construct of judicial system is pillared on the assumption that every judge besides being fair and impartial is fiercely independent and is free to uphold his judicial view,” Justice Shah said, adding this judicial freedom was foundational to the concept of rule of law. Thus the reconstitution of the bench while hearing the case, in the absence of any recusal from any member on the bench or due to any other reason, would amount to stifling the independent view of the judge and any effort to muffle disagreement or to silence dissent or to dampen an alternative viewpoint of a member on the bench, would shake the foundations of a free and impartial justice system, he feared.

“This erodes the public confidence on which the entire edifice of judicature stands,” he stated. Public confidence was the most precious asset that this branch of the state (judiciary) had, Justice Shah stated, adding it was also one of the most precious assets of the nation.

Citing from international jurisdictions, Justice Shah recalled how Prof Ahraon Barack pointed out that a judge ought to be aware of his power and the limits thereof. “Naturally, the judge knows the law and the power it grants to the judge, but he must also learn the limits imposed on him as a judge.”

Also, a judge must recognise his mistakes, Justice Shah said, adding that like all mortals judges erred but a judge must admit this.

While quoting Justice Jackson’s statement “we are not final because we are infallible, but we are infallible only because we are final”, Justice Shah stated: “I think the learned judge erred. The finality of our decision is based on our ability to admit our mistakes and our willingness to do so in appropriate cases.”

Justice Shah also cited ‘The Charter of Rights and Freedom: A Judicial Perspective’ in which McLachlim Beverly noted that if judges admitted their mistakes they would strengthen public confidence in the judiciary. Besides, he said, in writing and thinking, judges must “display modesty and an absence of arrogance”. Statements such as those of Chief Justice Hughes that “we are under the Constitution, but the Constitution is what the judges say it is” are not merely incorrect but also perniciously arrogant, Justice Shah observed.

He said his order be read into other cases fixed before the three-member bench on that day and which were again fixed before the reconstituted two-member bench. “All those cases are to be put up for rehearing before an appropriate bench again to be constituted by the chief justice and record of the court must reflect the correct status of these cases,” the order said.

Published in Dawn, January 13th, 2019