A letter penned by Justice Ijazul Ahsan of the Supreme Court, made public on Monday, has once more raised questions over divisions within the apex court, as the senior judge objected to benches formed to hear two high profile cases.
Following the enactment of the Supreme Court (Practice and Procedure) Act, 2023, a three-member committee—comprising Chief Justice of Pakistan (CJP) Qazi Faez Isa and Justices Ahsan and Sardar Tariq Masood—constitutes benches and fixes cases for hearing. The law does not call for unanimity in the fixing of cases or constituting benches, stating this must be done by a simple majority.
Last week, the Supreme Court Registrar issued a cause-list listing a six-member larger bench led by Justice Masood to hear intra-court appeals filed against an SC larger bench’s order banning trial of civilians in military courts. It also designated a three-member special bench led by Justice Aminuddin Khan to take up Justice Sayyed Mazahar Ali Akbar Naqvi’s petitions against misconduct proceedings initiated against him by the Supreme Judicial Council.
In his letter, available on the apex court’s website, Justice Ahsan noted he had attended a meeting of the three-member committee on Thursday, Dec. 7, to deliberate on formation of benches in both cases. In it, he wrote, it was agreed that the bench hearing the intra-court appeal should comprise seven senior-most judges to dispel the impression of “pick and choose,” adding Naqvi’s petition should also be heard by the available senior-most judges. According to Ahsan, it was agreed that the members of the committee would be informed after the availability of suitable judges was confirmed.
Ahsan’s letter claims he waited for this information on Friday, but was not conveyed anything. “Neither the minutes of the 4th meeting [of the three-member committee] nor those of the 5th meeting were sent to me on Friday or Saturday. Neither of the minutes have been sent or signed by me, yet these have been uploaded on the website of the Supreme Court of Pakistan,” he wrote, adding it was his right and duty to ensure the minutes accurately reflected the contents of the meetings.
In this regard, he claimed, the two announced benches were not constituted by the committee and were never placed before it in its last meeting. “Had these been placed before the committee, I could have agreed, disagreed, or refrained from giving my views. This has not happened to-date,” he said, adding instead of the agreed-upon seven-member bench, a six-member bench was formed to hear the intra-court appeals. He regretted he was not informed if any of the judges higher in the order of seniority had refused to become part of the bench.
“The three-member bench constituted to hear [Justice Naqvi’s] petition does not comprise honorable judges in the order of seniority,” he added.
Maintaining he was writing the letter to “set the record straight,” he said he expected it to be uploaded on the [SC] website “immediately.”
The Supreme Court experienced similar divisions under the tenure of former CJP Umar Ata Bandial, when judges were routinely kept out of benches hearing high-profile cases, with media personnel accusing the judge of preferring “likeminded” judges. At the time, Justice Ahsan was often the beneficiary of this policy, and did not raise any concerns over the makeup of benches or fixing of cases before them, even as judges placed higher on the seniority list were sidelined.