ISLAMABAD: Judge Qazi Faez Isa hoped on Saturday and prayed that the Supreme Court will stand firm against all manners of constitutional violations and protect the people from abuse of power.
In a strongly worded 28-page dissenting note, Judge Faez Isa also expressed the hope that unstructured discretion would be reduced because it had not served any institution or the interest of the people, adding that the most resilient institutions and the finer ones were those where frankness, transparency and legitimate dissent existed.
The dissenting note is a continuation of the February 11 order in which a bench of five SC judges headed by Chief Justice Gulzar Ahmed barred one of its members, Justice Isa, from hearing cases concerning Prime Minister Imran Khan. The bench heard the proposal to distribute the uprising subsidy of Rs500 million each among the legislators of the PTI.
The tug of war between senior officials of the judiciary is bringing down, rather compromising, the prestige and honor of the highest institution of justice, regretted a senior official on condition of anonymity.
Senior judge drafts dissenting note on February 11 order barring him from hearing cases involving the Prime Minister
Further, lawyer Taimur Malik, an expert on international law, said in a tweet: Pakistan has gone through phases of judicial acquiescence, judicial activism, judicial imperialism and (briefly) judicial restraint. Where are we going now!
Judge Isa expressed his disappointment by stating that a non-issue had been raised by the Chief Justice and, without hearing him, unilaterally ruled that he may be biased and lacking in impartiality. Thus, in an unprecedented way and without any proof or recourse to a request or an appeal, the reputation of a Supreme Court judge has been tarnished, deplores Judge Isa.
As a result, the credibility and integrity of the judiciary was also undermined, he lamented in the dissenting note, dubbing the February 11 order of four senior Supreme Court justices as something unresponsive. to the criteria stipulated to constitute a legal order of a decision in terms of Article 189 of the Constitution and therefore contrary to the rules of natural justice, the Constitution, impartiality and fair play undermined this court.
The evaluation and review of the decisions of this court dating from the 1950s shows that to be properly categorized as an order or a judgment, the reasons must be substantiated, the judgment must take place after a careful examination of the facts and the law and of the decision taken only after giving the affected party the opportunity to be heard, he stressed.
The Feb. 11 order did not indicate what particular jurisdiction was exercised, he said, noting that if the court assumed jurisdiction it did not have, such action or order was likely to be canceled.
Judge Isa explained that the person of Imran Khan and the post of Prime Minister were two different things and were not interchangeable since the Prime Minister was the head of the federal government and even the head of state (the president) in most cases acted on his advice. . If the Feb. 11 ordinance were implemented, it would mean that a Supreme Court judge can only hear private civil disputes, because even in criminal cases the state is still a party.
On bias, Judge Isa pointed out that he did not know Imran Khan personally and, therefore, could not be biased against him as Prime Minister. I am more than capable of judging impartially and without bias, otherwise he would violate the Constitution, his oath, his conscience and his faith, he said. My brothers [other judges] are not my guardians of conscience and I am not theirs.
Judge Isa regretted that if Imran Khan wanted to make allegations of bias against him, the prime minister had to do it himself, but Pakistan’s Attorney General Khalid Jawed Khan was not the prime minister’s personal lawyer and the Chief Justice could not support the Prime Minister either. minister or restrain the judge, neither the Constitution nor the law allowed judges to examine the hearts of fellow judges and determine whether they suffered from partiality and lack of impartiality. Only Allah Almighty knows what is in hearts.
Judge Isa also recalled how he wrote a letter to the Chief Justice opposing the constitution of the bench of five judges in which Judge Maqbool Baqar was not included despite the judge being part of the bench of two judges who had asked the CJP to constitute a larger bench. But, he regretted, the CJP did not respond to the letter.
This tribunal often castigates the arbitrary exercise of discretion, but by setting up benches to hear important constitutional questions, unstructured discretion is being exercised, Judge Isa regretted. This recurring issue was left unsupervised by the chief justices and was not put on the agenda of plenary meetings, he observed, adding that the Supreme Court was the final arbiter of all disputes and the guardian of the Constitution and was responsible for ensuring that the executive did not overstep or act contrary to the Constitution.
If the transgressions of executives are not controlled, and the benches are reconstituted and the judges retained, people suffer, he observed.
Judge Isa also highlighted 20 irregularities and illegalities in the order of February 11, saying that without informing the bench of two members, which was already hearing the case, the CJP decided to reconstitute the bench, to expand it and to exclude Judge Maqbool Baqar, no one had alleged a bias or a lack of impartiality against a judge of the bench, and without consulting his colleagues of the bench, the chief justice announced in a manner laconic that a judge should not hear any case involving the Prime Minister; the CJP arbitrarily introduced bias and a lack of impartiality on the part of a bench judge, who was not made aware of the written order.
Likewise, the order was sent to a junior judge while the said judge, his eldest, was bypassed; the court order was unwritten and therefore unsigned and therefore there is no court order and the case remains pending.
Judge Isa said the February 11 order was uploaded to the website before a judge saw it, let alone had a chance to accept / disagree with it with her; the order and the record were not sent, in accordance with a long-established practice, to him, who learned about it from the media and had to write to the clerk to request the order and the record.
Moreover, the restrictive paragraph of the ordinance contravenes the oath of the judges, contrary to Islamic principles, contrary to established jurisprudence.
The anomalies also pointed out that the statement reported by the Premiers indicated that public money would be disbursed for apparent political patronage at a time when the Senate elections were on the horizon and, as a result, a notice had been issued. earlier by the bench of two judges. ; however, without proper determination and verification of the veracity and effect of the documents he produced on the release of development funds in Constituency No.65, the matter was abruptly settled.
What started as an attempt to prevent corrupt practices and bribes ended with a judge’s reprimand and restraint, Judge Isa regretted, adding that the submission of a letter resignation was being considered, but then he remembered that it was not a judge and his mistreatment.
This is something much more important; the Constitution, the rights of peoples and their money. All I have, with the help and grace of Allah Almighty, has strived to protect and (InshaAllah) will continue to do so, Judge Isa observed.
Posted in Dawn, February 21, 2021
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