Nisar’s re­con­sti­tu­tion of court bench ques­tioned

The Gulf Today - - ASIA - BY TARIQ BUTT

IS­LAM­ABAD: After Jus­tice Qazi Faez Isa, an­other Supreme Court judge Jus­tice Man­soor Ali Shah has ques­tioned the may 2018 re con­sti­tu­tion of a court bench by Chief Jus­tice Mian Saqib Nisar and called the de­ci­sion ‘un­war­ranted and un­prece­dented’.

The chief jus­tice had re­con­sti­tuted a bench, hear­ing var­i­ous pub­lic in­ter­est cases in Peshawar on May 9, 2018. It ear­lier com­prised three judges - the chief jus­tice ear­lier com­prised Jus­tice Isa and Jus­tice Shah. how­ever, dur­ing the hear­ing, jus­tice Nisar had an­nounced re­con­sti­tu­tion of the bench by ex­clud­ing Jus­tice Isa.

Later, Jus­tice Isa had is­sued a three­p­age note, rais­ing se­ri­ous ques­tions over re­con­sti­tu­tion of the bench.

After the pas­sage of seven months, Jus­tice Shah has also en­dorsed Jus­tice Isa’s ob­jec­tions.

The re­con­sti­tu­tion of the two-mem­ber bench and the pro­ceed­ings be­fore it on May 9, 2018 in all the cases ixed be­fore it are void and non-est, Juset­ice Shah wrote and said he agreed with his brother Jus­tice Isa that the re­con­sti­tu­tion of the bench by the chief jus­tice in the present case is un­war­ranted and un­prece­dented and un­der­mines the in­tegrity of the sys­tem.

Jus­tice Shah says in the ab­sence of a re­cusal by a mem­ber of the bench, any amount of dis­agree­ment amongst its mem­bers on an is­sue be­fore them, can­not form a valid ground for re­con­sti­tu­tion of the bench, adding that any re­con­sti­tu­tion on this ground would im­pinge on the con­sti­tu­tional value of in­de­pen­dence of ju­di­ciary.

He said the con­struc­tion of a ju­di­cial sys­tem is pil­lared on the as­sump­tion that ev­ery judge be­sides be­ing fair and im­par­tial is iercely in­de­pen­dent and is free to up­hold his ju­di­cial view. This ju­di­cial free­dom is foun­da­tional to the con­cept of rule of law.

“Re con­sti­tu­tion of a bench while hear­ing a case, in the ab­sence of any re­cusal from any mem­ber on the bench or due to any other rea­son, would amount to stil­ing the in­de­pen­dent view of the judge. Any ef­fort to mu­fle 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, thereby erod­ing the pub­lic conidence on which the en­tire edi­ice of ju­di­ca­ture stands,” he says.

The judge ad­mits that his sit­ting on the re­con­sti­tuted two-mem­ber bench was a mis­take and hav­ing re­al­ized that after ex­am­in­ing the le­gal po­si­tion, he did not sign the or­ders passed by the re­con­sti­tuted two-mem­ber bench and as a ju­nior mem­ber of the bench, awaited for the chief jus­tice to pass an ap­pro­pri­ate or­der in re­sponse to the or­der of Jus­tice Isa.

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