A note authored by Justice Qazi Faez Isa, elaborating on an unusual development which led to him being excluded from a three-member bench earlier this week, surfaced on Saturday in which the judge appeared to take exception to him being excluded from a bench hearing a human rights case.

The note referred to a recent incident when a three-member bench of the Supreme Court — headed by Chief Justice Saqib Nisar — was hearing a case pertaining to hospital waste disposal. Khyber Pakhtunkhwa Health Secretary Abid Majeed was reading out from a report on incinerators in government hospitals, which he said had been submitted on the directives of the human rights cell (HRC) of the apex court.

Justice Isa notes that he then called the KP advocate general to read out Article 184 (3) of the Constitution. He said this was done because he wanted to ascertain whether the said article could be invoked in the case being heard as the relevant material was absent from its file.

He noted that the article allows the apex court to give an order if it "considers that a question of public importance with reference to the enforcement of any of fundamental rights" is involved, adding that the SC needs to satisfy itself that both conditions i.e. the matter being of public importance and involving fundamental rights, are met for it to be able to assume original jurisdiction as stated in Article 184 (3).

He noted that the director of the HRC had written similar notes in earlier cases as well.

"However, before Article 184(3) could be read, the honourable chief justice intervened and said that he will be reconstituting the bench and suddenly rose up. The Bench was then presumably reconstituted, I say presumably because no order was sent to me to this effect. However, a two member bench did assemble later, from which I was excluded."

Justice Isa continued that the matter was of grave concern to him as "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."

"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," he concluded.

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