KARACHI: Justice Syed Mansoor Ali Shah has said that until the constitutionality of the Supreme Court (Practice and Procedure) Act 2023 is decided, all matters falling under the original jurisdiction of the Supreme Court should be heard by the full court bench of the Supreme Court. .
In a detailed note released on Tuesday night, which was originally written on June 22, Supreme Court Justices Sardar Tariq Masood and Syed Mansoor Ali Shah on the nine-member bench constituted to hear the military court petitions. Agreed with the reasoning of Justice Qazi Faez Isa regarding the refusal. Civil cases
Later the bench was reduced to seven members.
The notes add to a detailed note written by Senior Puisne Judge Justice Isa on June 22, which explained why he had refused to be part of the nine-member bench set up to hear civilian cases in military courts. Refused and why the Supreme Court had to resolve the Court Practice and Procedure Bill, 2023 before it became part of the SC Benches.
The note was removed from the Supreme Court website soon after it was uploaded.
The notes of Justices Masood and Shah are clear in their view that the Supreme Court (Practice and Procedure) Act, 2023 has to be decided before the formation of such benches.
Justice Masood said he agreed with what Justice Isa had written in his note, revealing that even Chief Justice Umar Atta Bandial did not consult him before he was made part of the nine-member bench.
“Surprisingly,” he added, the petitions were settled only a day after the petitioner and his counsel for “Constitution Petition No. 25 of 2023” met the Chief Justice.
Justice Masood wrote that he is awaiting a decision on the Supreme Court (Practice and Procedure) Act, 2023 and expects it to be decided soon.
As pointed out by Justice Isa in his note, Justice Masood also writes about Section 3 of the Supreme Court (Practice and Procedure) Act which states that “the original scope under Clause 3 of Article 184 of the Constitution Any matter in exercise of the power shall first be referred to the Committee constituted under Section 2 for consideration if the Committee is of the opinion that any of the fundamental rights conferred by Chapter 1 of Part II of the Constitution. In relation to the implementation of a question of public importance involving a question of public importance, constitute a bench of at least three judges of the Supreme Court of Pakistan, which may also include a member of the committee to decide the matter.
He said the current issue (petitions related to military trials of citizens) “has not been referred to the committee, of which I am a member.”
According to Justice Masood, he was reluctant to sit on the bench till the final verdict on the Supreme Court (Practice and Procedure) but since he was heading a bench that was hearing 30 to 35 criminal cases per day. Those who were in jail, he “disposed of the said criminal act” and requested the Chief Justice to expeditiously dispose of the Supreme Court (Practice and Procedure) Act 2023 petitions.
Importantly – and very much like Justice Isa – Justice Masood also says that he “has not withdrawn from the bench”, hence “there is no question of signing the purported order which states that that a new bench be constituted.constituted whereas my view was that these petitions should be heard after the decision of the said petitions filed against the [Supreme Court (Practice and Procedure) Act 2023]. “
Adding his note to the document, Justice Shah said he was sitting on the bench “with a reservation” that “there has been a consistent pattern and reluctance in the past not to constitute a full-court bench” and instead appoint special Chose the benches. Some of the judges in the cases have what they call “immense public importance that has far-reaching implications for the political, social and economic life of the people of Pakistan and their fundamental rights”.
This has “severely undermined the authority of the court and the legality of its decisions,” Justice Shah said. Referring to the present case – the trial of civilians in a military court – he says that the “constitutional importance of the issue involved in the present case and its potential implications, demand the highest degree of judicial scrutiny”.
Making a case for a full-bench hearing, he wrote, “In cases of public importance, collective deliberation and diverse insights by all the judges help the court arrive at a sound decision and the public on that court. It reinforces confidence and trust.”
Again, referring to the Supreme Court (Practice and Procedure), Justice Shah reinforced the point that until the court decides the constitutionality of the “Supreme Court (Practice and Procedure) Act, 2023, which section 3 prescribes the procedure for exercise of originality. Jurisdiction of this Court under Article 184(3) of the Constitution, all such matters under that jurisdiction should be heard by a Full Court Bench of this Court.”
Justice Shah says that he requested Chief Justice Bandial to consider constituting a full court bench but the Chief Justice did not do so.
