A note penned by Justice Qazi Faez Isa on why he refused to remain a part of the nine-member bench hearing petitions against the trials of civilians in military courts was on Friday removed from the Supreme Court’s website mere hours after being uploaded.
This is the second time one of Justice Isa’s notes has been removed from the Supreme Court website—a fact he remarked on when he announced he could not hear the military courts’ case, as he “did not consider the nine-member bench a legal bench.” Previously, the SC website had uploaded and removed a note in which he had declared a six-member bench “illegal” and ordered the adjournment of all cases pending under Article 184(3) until the matter could be resolved.
In the newly-deleted 30-page note, Justice Isa said the bench was “invalid” until the matter of the Supreme Court (Practice and Procedure) Bill, 2023 had been adjudicated. Once this was done, he said, a new bench should be constituted. Stressing that he had not heard any case since the SC had suspended the Supreme Court (Practice and Procedure) Bill, 2023, he said that if he were to hear any case now, it would “will violate my constitutional and legal position.” He said he had communicated this to Chief Justice of Pakistan (CJP) Umar Ata Bandial, adding the CJP had “never denied his stance till today, but he did not even bother to answer my opinion.”
Nonetheless, the senior puisne judge said he was not recusing himself from the bench. “I am aware that the chief justice has involved his colleagues in an unnecessary conflict for no reason and in my opinion, the CJP should not do this,” he wrote, maintaining that a constitutional institution like the Supreme Court could not be run on the whims of a single person. Noting the Supreme Court (Practice and Procedure) Bill, 2023 applied to the CJP and the next two senior-most judges, he said it was his “duty” to ensure the law was followed as the senior-most judge.
“The law was not implemented as it was suspended by the SC even before it was enacted. I pointed out that any petition against the law would either be accepted or rejected,” he noted, adding that this was the first time he had ever heard of a law’s implementation being suspended rather than rejected.
Justice Isa wrote that the CJP had put him in a state of uncertainty and it could only be resolved if a decision were made on the petitions against the procedure law or the stay order against its implementation withdrawn. As the bench hearing petitions related to the Supreme Court (Practice and Procedure) Bill is headed by the CJP, Justice Isa noted only he could answer when a verdict would be announced.
The note also referred to the May 19 appointment of Justice Isa as head of the three-man judicial commission to inquire into audio leaks that had its proceedings stayed by a bench headed by the CJP despite one of the alleged audio leaks concerning a relative of Justice Bandial.
“The interest of citizens therefore will be best served to postpone the hearing of this case [military courts], and of all other cases under Article 184(3) of the Constitution, till the matters noted hereinabove are first attended to by making requisite rules in terms of Article 191 of the Constitution,” added the note. He also noted that several cases concerning fundamental rights had been pending for years without any hearings, and questioned why this particular case had attracted such expediency.
“In conclusion, let me categorically state that how my distinguished colleagues decide the pending petitions is their discretion. All that I look for, and which the country undoubtedly expects, is the earliest possible determination of the matter. I have been compelled to write this note in response to the aforesaid query of the Hon’ble Chief Justice. Since a number of my colleagues have enquired why I am not sitting in Court, I shall also be sharing this note with them,” he added.
The petitions against trials of civilians in military courts were initially to be heard by a nine-member bench led by the CJP and comprising Justices Isa, Sardar Tariq Masood, Ijazul Ahsan, Mansoor Ali Shah, Muneeb Akhtar, Yahya Afridi, Ayesha Malik, and Mazahir Ali Naqvi. However, after Justices Isa and Masood said they could sit with the bench until the petition against the procedure law was resolved, it was reformed as a seven-member bench without their inclusion.