Reconstitution of benches: Justice Mansoor agrees with Justice Faez

ISLAMABAD: The Supreme Court judge Justice Mansoor Ali Shah has issued an order in a human rights case of last year at SC Peshawar registry in which he has issued ruling about the step of Chief Justice of Pakistan Saqib Nisar about converting the three-judge bench into a two-judge bench by excluding Justice Qazi Faez Isa.

“I have seen the Order passed by my learned brother Qazi Faez Isa, J. in the instant case dated 09.05.2018 (the “Order”). This Order was passed when the three-member bench, of which he was a member, was abruptly reconstituted, ousting him as member of the bench,” Justice Mansoor Ali Shah wrote in the order.

He observed that he waited for the senior member of the bench (the chief justice) to pass an appropriate order in the case and also respond to the order passed by Justice Qazi Faez Isa, in order to explain the reconstitution of the bench that day.

“However, no such order has been passed till date and the case has been incorrectly reflected in the ‘Bench Disposal Statement’ of the said date as an “adjourned case.” The Hon’ble Chief Justice is retiring on 17th January, 2019, therefore, I feel constitutionally obligated, as a member of the bench, to express my views regarding the Order of my learned brother and to pass my order in this case for 19.05.2018, when it came up for hearing before the bench,” Justice Mansoor Ali Shah wrote in the order.

Mentioning the background of the case, Justice Mansoor Ali Shah said a special three-member bench was constituted to hear cases on 09.5.2018 at 3:00pm at the Peshawar Registry of the Supreme Court, including the instant case. “This bench was to assemble after the conclusion of work by the regular two-member bench already working at Peshawar comprising Qazi Faez Isa, J. and myself. The special three member bench heard the first case i.e., Constitution Petition No.74/2013 titled Professor Muhammed Ibrahim Khan and others v. ERRA through its Chairman and others and connected HRC No.25684-K/2017 Application by Sheraz Mehmood Qureshi and passed a verbal order constituting a Commission.1 When the titled case (second case on the Cause List) came up for hearing, my learned brother Qazi Faez Isa J. inquired from the counsel as to how the case was initiated by the Human Rights Cell, under Article 184(3) of the Constitution (The Order passed by my brother, relevant extracts reproduced above, is self-explanatory). At this juncture I felt a certain unease amongst the other two members of the bench over the issue of Article 184(3) and in order to avoid any further escalation, I proposed to the Hon’ble Chief Justice to take a brief recess so that the members of the Bench can discuss this matter in chambers to avoid embarrassment in open court,” Justice Mansoor Ali Shah said.

However, he said, the chief justice, instead, announced in open court that the bench stands reconstituted and that the new two-member bench will re-assemble soon.

“The Bench was reconstituted and the new two-member bench, comprising the Hon’ble Chief Justice and myself, assembled and resumed the hearing of the instant case, which was being heard earlier by the three-member bench. We also heard the other cases from the same cause list. However, after court, I had a chance to read the order of my learned brother. This necessitated the examination of the legal scope of reconstitution of benches under the Supreme Court Rules, 1980 (“Rules”). Upon examining the legal position, I declined to sign the orders of the newly re-constituted two-member bench unless the order of my learned brother was responded to,” he wrote.

“In my opinion, a bench, once it is constituted and is seized of a matter on the judicial side, cannot be reconstituted by the Chief Justice in exercise of his administrative powers, unless a member(s) of the bench recuses or for reasons discussed above. Therefore, the reconstitution of the two-member bench and the proceedings before the said bench on 9th May, 2018 in all the cases fixed before it are void and non-est. I agree with my learned brother Qazi Faez Isa, J. that the reconstitution of the Bench by the Hon’ble Chief Justice in the present case is unwarranted and unprecedented and undermines the integrity of the system,” Justice Mansoor Ali Shah wrote.