Justice Qazi Faez Isa expresses reservations after being separated from SC bench



A senior judge of the Supreme Court on Saturday questioned the management and exercise of Suo Motto powers by Chief Justice, Saqib Nisar and said, in a judicial order, that a simple administrative decision of the Chief Justice could not be a substitute for an order of the Supreme Court.

Justice Isa writes: “The approval of the Honourable Chief Justice is also not a substitute for an order of the Supreme Court.”

In a judicial order Justice Qazi Faez Isa has raised concerns over the dissolution and reconstitution of a bench by the Chief Justice of Pakistan Mian Saqib Nisar.

A three-judge bench, headed by the CJP and comprising Justice Qazi Faez Isa and Justice Syed Mansoor Ali Shah, was hearing case at Peshawar Registry.

The incident took place at the SC’s Peshawar registry earlier when the special bench was formed to hear the case pertaining to the hospital wastes. However later the Chief Justice of Pakistan dissolved and reconstituted of bench, which has given rise to many concerns to the judge.

Justice Isa also wrote, “Needless to state the powers that the Constitution has granted to the Supreme Court cannot be assumed by the said Director.” The director in question is of the Human Rights cell of the SC.

In an order, Justice Isa wrote about the power of the suo motu invoked by Article 184(3) of the Constitution, and of the reconstitution of a bench formed to hear a particular case. A copy of the two-page order is available.

Justice Isa reveals that while the SC judges were discussing the disposal of infectious hospital wastes in Peshawar, the CJP stood up and reconstituted the bench hearing the case. “The bench was then presumably reconstituted, I say presumably because no order was sent to me in this effect,” he writes.

“However, a two-member bench did assemble later, from which I was excluded. This for me is a matter of grave concern. In my humble opinion it is unwarranted and unprecedented to reconstitute a bench, in such a manner, whilst hearing a case. To do so undermines the integrity of the system, and may have serious repercussions,” Justice Isa penned.

In a series of concerns, the judge also mentioned the importance of corroborating the SC’s original jurisdiction with the Constitution. “Before exercising its original jurisdiction the Supreme Court must satisfy itself that the jurisdiction it is assuming accords with the Constitution. However, even before any opinion could be expressed thereon the matter was cut short as mentioned above.”

The matter has irked the justice to such an extent that he felt not raising voice on the matter would be injustice. “I am constrained to write this as not doing so would weigh heavily on my conscience and I would be abdicating my responsibility as a judge.”

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