The Supreme Court (SC) on Tuesday issued the notes of two judges—Justices Sardar Tariq Masood and Syed Mansoor Ali Shah—who were initially part of the nine-member bench hearing petitions against trials of civilians in military courts before it was whittled down to six members.
Chief Justice of Pakistan (CJP) Umar Ata Bandial last month formed a nine-member bench to hear the petitions against military trials of civilians. Surprisingly, it included Justice Qazi Faez Isa, who had not been included in any bench for several months, triggering speculation over rifts within the judiciary. The rumors were further fueled when the proceedings commenced, with Justice Isa announcing he could not remain a part of the bench until a petition challenging a law curbing the unilateral bench-fixing powers of the CJP had been resolved. Justice Masood had endorsed his view, with both saying that while they were not recusing themselves, they could not remain on the bench while legislation regarding bench formation was still pending resolution.
The bench was subsequently reduced to seven judges. Following a week of proceedings, the bench was further reduced to six judges after the government raised objections to Justice Shah’s inclusion because he is related to one of the petitioners, prompting his recusal.
Justice Isa had issued a note explaining his decision a day after departing the bench. This was initially uploaded and removed from the Supreme Court website before being made an official part of the proceedings. The notes issued on Tuesday have been penned by Justices Masood and Shah, with both explaining their decisions to exit the bench.
In his note, Justice Masood endorsed Justice Isa’s view of the bench being “illegal” until the matter of the bench-fixing legislation had been resolved. He also noted that he had not been consulted by the CJP before being included in the bench. “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 wrote.
Explaining that he had been reluctant to sit on any bench after the stay order was issued, he said he had continued to remain part of a bench hearing appeals against criminal convictions but had requested the CJP to speedily dispose of the petitions filed against the SC act to resolve the situation. Stressing that he had not recused from the bench, he reiterated that no petitions should be heard until after the petitions against the act had been wrapped up. If a law is challenged, he noted, it usually happens in the relevant high court under Article 199 of the Constitution. However, the pending petitions had been filed under Article 184(3), whose jurisdiction could only be invoked in the public interest to enforce fundamental rights, he added.
In his note, Justice Masood also regretted that the challenges against trials of civilians in military courts had not been filed by anyone who was detained or facing such trials with regard to offenses allegedly committed during the May 9 riots. He expressed surprise that these petitions had been fixed just a day after one of the petitioners and his counsel met the CJP in his chambers, adding the bench was formed without any consultation or ascertaining the availability of judges included in it.
Justice Shah’s note, meanwhile, stated that he had decided to sit on the seven-judge bench—following the exits of Justices Isa and Masood—with certain reservations. He regretted the “consistent” pattern of reluctance in the recent past of forming a full court bench 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,” he wrote, adding that the constitutional significance of civilian trials in military courts and its potential ramifications called for the highest level of judicial scrutiny that gathered the input of a maximum number of judges.