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Thursday December 02, 2021

SC can’t bar a judge from hearing case: Justice Faez

February 21, 2021

ISLAMABAD: The Supreme Court judge Justice Qazi Faez Isa has termed the apex court’s order of February 11, restraining him from hearing matters involving the prime minister as an attempt to undermine the judiciary and the country’s highest court.

In a dissenting note on Saturday, Justice Qazi Faez Isa raised 20 objections on the order passed by the Supreme Court on February 11 and said that paragraph 6 of the order passed against him undermines the judiciary and the Supreme Court. Chief Justice of Pakistan Justice Gulzar Ahmed had restrained Justice Qazi Faez Isa from hearing matters involving the prime minister.

The chief justice had held that in order to uphold the principle of un-biasness and impartiality, it would be in the interest of justice that the judge (Justice Faez Isa) should not hear matters involving the prime minister.

Justice Faez Isa in his dissenting note stated that the said order and the events leading up to it suffer from several improprieties and illegalities. He said that no one on the bench had alleged bias or lacked impartiality, adding that the chief justice arbitrarily introduced a non-issue-bias and lack of impartiality on the part of a judge on the bench.

The judge further said that without consulting his colleagues on the bench, the chief justice tersely announced that a judge of the Supreme Court should not hear any case involving the prime minister.

Similarly, Justice Faez Isa said that without informing the two-member bench, which was already hearing the matter, it was ordered to reconstitute the bench, expand it and exclude Justice Maqbool Baqar from it. Justice Faez Isa said that he was not made privy to the written order. “The order was sent to a junior judge while the said judge, his senior, was bypassed,” Justice Faez Isa said. He further said that 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 said that the order was uploaded on the Supreme Court website before a judge had seen it, let alone had the opportunity to agree/disagree with it.

Justice Faez Isa said that the order and case file were not sent, in accordance with long-standing established practice, to him but he learnt about the order through the media for which he had to write to the registrar seeking the order and case file.

“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,” Justice Faez Isa contended.

He said that paragraph 6 of the order does not constitute a legal ‘order’ as per law and as per the precedents of this court. Similarly, he said, paragraph 6 of the order does not constitute a decision in terms of Article 189 of the Constitution.

The judge said that paragraph 6 of the order contravenes the precedents of several larger benches of this court, holding that only the concerned judge can decide if he should hear a case.

“Paragraph 6 of the order is contrary to settled jurisprudence and contrary to Islamic principles and jurisprudence while it also contravenes the oath of Judges,” Justice Faez Isa maintained

The judge said that the prime minister’s 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. “What commenced as an attempt to prevent corrupt practices and bribery ended with a Judge being rebuked and restrained,” Justice Faez Isa said. The judge said that Article 248 of the Constitution was referred to during the hearing by a judge and passing reference has been made to it in the order, but since it has not been elaborated it need not be discussed in detail.

“However, this court has held that only actions in accordance with the Constitution and the law have constitutional protection,” Justice Faez Isa said, adding that there is no constitutional protection if an office is misused for personal or political gain, enriching friends, taking bribes or resorting to other corrupt practices, including diverting public funds to buy or influence legislators to vote for particular candidates.

The judge said that if it was felt that the order should accurately reflect what transpired in court and, therefore, Article 248 was mentioned in the order, then for completeness it should have also been stated that a judge had questioned the AG to opine, ‘If the documents were genuine whether the same conformed with the Constitution and precedent of this court?’ and, that the question was not answered by the AG.

Justice Faez Isa said loyalty is always to the Constitution, which needs remembering and restating; if the head of an institution deviates he must be reminded. The judge said that submitting a resignation letter was contemplated, but then he remembered that this is not about a Judge and his mistreatment.

“It is about something far more important; the Constitution, the people’s rights and their monies,” the judge said.

“All of which I have, with Almighty Allah’s help and grace, endeavoured to protect and will (insha’Allah) continue to do so,” Justice Faez Isa vowed.

“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,” the judge said.

To end on a positive note, he said, the most resilient and finest institutions are those wherein there is candour, transparency and legitimate dissent. Justice Faez Isa prayed that this this institution unwaveringly stands against all manner of constitutional violations and safeguards the people against misuse of power.