Nisar’s reconstitution of court bench questioned

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.