ISLAMABAD: The Chief Justice of Pakistan (CJP) constituted a five-judge apex court bench on Tuesday to hear the Supreme Court Bar Association’s (SCBA) petition over the no-confidence motion, together with the presidential reference seeking interpretation of Article 63-A of the Constitution.

The hearing will commence on Thursday (tomorrow). The bench consists of CJP Umar Ata Bandial, Justice Ijaz-ul-Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhel.

At the last hearing on Monday, the CJP had hinted at constituting a larger bench to hear the matter together. The SCBA has sought a restraining order against the government’s “intentions” of stopping legislators from taking part in the vote on the no-trust motion against Prime Minister Imran Khan.

Justice Isa argues the two matters cannot be heard simultaneously

After Monday’s hearing, the Supreme Court said in clear terms that it was not inclined to take up the issue raised by SCBA counsel Mansoor Usman Awan, as well as counsel for the political parties which moved the no-trust motion, that Speaker Asad Qaiser had violated the Constitution by summoning the National Assembly session on March 25, three days beyond the stipulated 14-day period.

“Our attention was drawn to the order issued by the Speaker in this regard, but we are not inclined to take up this matter as it was collateral to the questions of constitutional interpretation raised before the court not only in terms of the SCBA petition but also the reference moved by President Dr Arif Alvi in terms of Article 186 of the Constitution,” the order said. “In any event, for such matters the Constitution envisages a remedy before parliament itself.”

Justice Isa’s objection

Senior puisine judge Justice Qazi Faez Isa on Tuesday wrote a three-page letter to the CJP, highlighting that the SCBA petition under Article 184(3) of the Constitution cannot be heard simultaneously with the reference under Article 186 in which the president had sought an opinion on interpretation of Article 63A.

The letter stated that the original jurisdiction under Article 184(3) of the Constitution and advisory jurisdiction under Article 186 were altogether different and thus could not be heard simultaneously.

Moreover, it said, the composition of the five-judge bench consisted of judges who were 4th, 8th and 13th in seniority list of the court. This has been done by discarding the good practice of structuring the CJP’s discretion by predecessors of constituting benches consisting of senior most judges when cases involved important constitutional questions.

Therefore, there is no discernible criterion in the constitution of the present bench, the letter regretted, adding that this was most troubling and gave rise to unnecessary and avoidable misgivings.

The Constitution recognises the most senior judge of the apex court and with seniority comes responsibility, which must not be shirked, the letter said, adding that the senior most judge also ensures continuity of the Supreme Court as an institution, but this practice has been discarded, which may have adverse consequence for the institution.

Published in Dawn, March 23rd, 2022