While raising objection over top court verdict that barred him to hear cases involving Prime Minister Imran Khan, the Supreme Court judge Justice Qazi Faez Isa termed the order and events leading up to it suffer from the improprieties and illegalities.
On February 11, after dismissing the plea about allegations that the PM has distributed development funds among lawmakers Chief Justice of Pakistan Gulzar Ahmed said in a written order that Supreme Court Justice Qazi Faez Isa “should not hear matters involving the prime minister”.
Citing the reason of his order in the matter, the top judge noted that since Justice Qazi Faez Isa had, in a personal capacity, filed a petition against PM Imran Khan, it “would not be proper” for the former to hear cases involving the PM in order “to uphold the principle of un-biasness and impartiality”.
However, in a 28-page dissenting note to the February 11 order on Saturday, Justice Qazi Faez Isa raised objections on 20 points from the judgment, underscoring that the decision undermines the judiciary and the Supreme Court.
Justice Isa pointed out that without informing the two-member bench, which was already hearing the matter, the chief justice decided to reconstitute the bench, expand it and exclude Justice Maqbool Baqar from it.
He further said that no one had alleged bias or lack of impartiality against any judge on the bench but without consulting the bench, the chief justice “tersely announced that a Judge of the Supreme Court should not hear any case involving the Prime Minister”.
“The Hon’ble Chief Justice arbitrarily introduced a non-issue bias and lack of impartiality on the part of a Judge on the Bench,” the note further read.
Justice Isa further objected that the judge was not made privy to the written order and that the order was sent to a junior judge while the said judge, his senior, was bypassed. “The ‘Order of the Court’ was not written and thus, not signed, therefore, there is no Order of the Court and the matter remains pending,” he stated adding that the order was uploaded on the Supreme Court website before a judge had seen it, let alone had the opportunity to agree or disagree with it”.
“The order and case file were not sent, in accordance with long-standing established practice, to the said judge and the said Judge learnt of the order through the media,” Justice Isa said in the note underscoring that he had to late write to the registrar to seek the order and case file.
The justice further stressed that Paragraph 6 of the order is unconstitutional as it was not passed under any of the different jurisdictions of the Supreme Court stipulated in the Constitution.“Paragraph 6 of the order does not constitute a legal ‘order’ as per law and as per the precedents of this Court,” he stated.
Raising further objections he said that paragraph 6 of the order does not constitute a decision in terms of Article 189 of the Constitution and contravenes the precedents of several larger benches of the court, holding that only the concerned judge can decide if he should hear a case.
Justice Qazi Faez Isa also noted that paragraph 6 was contrary to settled jurisprudence and also to Islamic principles and jurisprudence. He emphasised that paragraph contravenes the oath of judges. “Prime Minister Imran Khan reported statement said that money from the public purse would be disbursed for apparent political patronage at a time when the Senate elections were on the horizon, therefore, notice was issued by the two-member bench, however without a proper determination, and without ascertainment of the veracity and effect of the documents, the matter was abruptly disposed of,” Justice Qazi Faez Isa said adding paragraph 6 undermines the judiciary and the Supreme Court.
“What commenced as an attempt to prevent corrupt practices and bribery ended with a Judge being rebuked and restrained,” Justice Qazi Faez Isa expressed in his note saying that submitting a resignation letter was contemplated.
“But then I remembered that this is not about a judge and his mistreatment. It is about something far more important; the Constitution, the peoples’ rights and their monies. All of which I have, with Almighty Allah’s help and grace, endeavored to protect and will (insha’Allah) continue to do so,” Justice Isa added.
“In conclusion, I must say that it has been extremely painful for me to write this order. I apologise if anything herein has hurt or offended as that has not been my intention. I have said what I felt I needed to say in the hope that unstructured discretion is curtailed.”
“Since it has never served any institution nor the interest of the people. To end on a positive note, the most resilient and finest institutions are those wherein there is candour, transparency and legitimate dissent,” he said adding that he prays that courts stand against all manner of constitutional violations and safeguards the people against the misuse of power.”
The writer heads a leading news wire service ‘The Law Today Pakistan’ commonly known as TLTP. He has a special focus on news relating to superior courts adjudication, access to right of information, civil, political, social and economic rights under the approach that existing cyber regime realization ensures procedural fairness in administrative law. He can be reached at email@example.com