Justice Yahya Afridi, a member of the six-person apex court panel considering petitions challenging the court martial of May 9 rioters, has asked Chief Justice of Pakistan (CJP) Umar Ata Bandial to convene a full court to hear the cases.
The judge said that public trust is the foundation of a credible justice system in a note attached to the court’s June 23 order that was released on Tuesday.
Given the current political climate, where the current administration’s tenure is winding down and new elections are being prepared for, criticism of the current bench’s makeup is understandable.
“But what is most serious and cannot be disregarded is that there are objections in writing from within the members of the bench, to the very constitution of the bench hearing the present petitions,” he said, alluding to a note of Justice Qazi Faez Isa, who was previously a part of the bench, which included nine judges.
To that end, “in this regard, the Hon’ble Senior Puisne Judge [Justice Isa] has recorded in writing his aforementioned reservations, and the same are by now in the public domain.
On June 23, a nine-member bench led by CJP Bandial began hearing petitions against the trial of civilians in military courts filed by former CJP Jawwad S. Khawaja, former prime minister Imran Khan, Pakistan Peoples Party (PPP) leader Aitzaz Ahsan, and the civil society. Justice Isa raised a number of concerns.
Despite being named the future CJP three months in advance, Justice Isa objected to sitting on the bench. To clarify the establishment of benches in cases involving Article 184(3), he stated that parliament has passed the Supreme Court (Practise and Procedure) Act, 2023.
According to him, Article 184(3) requires the CJP to consult with senior SC judges before the Supreme Court can exercise its original jurisdiction.
Until the Supreme Court rules on the destiny of the Supreme Court (Practise and Procedure) Act, 2023, which an eight-judge bench stopped even before its passage, the judge underlined that he could not consider the petitions filed against military courts.
Justice Sardar Tariq Masood, another member of the court, agreed with Justice Isa and similarly dismissed the petitions. Justice Isa later remarked that he “did not consider the nine-member bench a bench” in a note that was published and then removed from the SC website.
The make-up of the bench is an issue that has to be revisited by the CJP, Justice Afridi said, “lest it may dampen public trust in the justice system.”
“I am not approving or agreeing with the reasons stated in the written note of the Hon’ble Senior Puisne Judge. I do not think it is necessary at this time to comment on the legality of the current procedures.
And yet, he said, “propriety demands taking appropriate measures for maintenance of harmony’ within the court, the ‘integrity of the institution,’ and the ‘public trust in the court,'” even if one would disagree with the law issues expressed in the Hon’ble Senior Puisne Judge’s concerns.
He suggested that a full bench of judges be assembled to consider the petitions at hand as a first step.
Without this precaution, I respectfully submit, a bench decision on these petitions may result in less respect being given to the decision than it deserves and needs.
“It is, therefore, most earnestly urged that the Hon’ble Chief Justice of Pakistan may consider the reconstitution of the present bench, and refer the present petitions to a full court bench,” he wrote.
When the administration objected to Justice Mansoor Ali Shah’s inclusion on the bench on June 26, he recused himself from the case and joined the chorus of voices calling for a full court to hear the appeals.
