• Justice Ahsan says seniority principle not being followed, special benches ‘not set up’ by the committee
• Ex-CJP’s plea seeks recusal of Justice Masood in military trials case

ISLAMABAD: Disagreement in the workings of the three-judge committee that fixes cases before different benches has started to surface, with Justice Ijazul Ahsan asking Chief Justice Qazi Faez Isa to issue a roster originally agreed upon during the committee meeting.

Justice Ahsan is a member of the three-judge committee constituted under Section 2(1) of the Supreme Court (Practice and Procedure) Act 2023 to determine fixation of cases before different benches. The committee consists of CJP Isa, Justice Sardar Tariq Masood, and Justice Ahsan.

In two separate letters, one issued to the secretary of the committee on Dec 11 and the other to the CJP on Nov 17, Justice Ahsan stressed that the rule of seniority of judges was agreed to be followed to hear cases in the interest of transparency.

The letters were issued in response to the release of the minutes of the fourth and fifth meetings of the committee, with the minutes of the fourth meeting suggesting that a larger bench would be constituted by CJP Isa and Justice Masood to hear the intra-court appeals (ICA) regarding trials of civilians under the Pakistan Army Act, 1952.

In his letter to the secretary, Justice Ahsan regretted that the two special benches formed to hear the ICAs in the military court case and the petition of Justice Sayyed Mazahar Ali Akbar Naqvi challenging a show-cause notice by the Supreme Judicial Council, respectively should, be “deemed as not set up by the committee”.

Justice Ahsan recalled how during the fifth meeting of the committee, it was agreed that since the judgement in the trial of civilians by military courts had been rendered by a five-judge bench, a seven-judge bench should be constituted to hear ICAs. Instead, a six-judge bench was formed, with Justice Sardar Tariq Masood as its head.

To dispel any impression of pick and choose, Justice Ahsan recalled, he had requested that all judges in the order of seniority be included in the ICA bench. The same principle was agreed to hear the case of Justice Naqvi.

It was agreed that after asking the proposed members of the two benches the members of the committee would be informed. Justice Ahsan regretted the minutes of the two meetings were not sent to him and they were uploaded to the SC website without his signature.

“The two special benches have not been constituted by the committee,” the letter claimed, adding that the matter was never placed before the committee in its meeting.

Letter to CJP

In his Nov 17 letter, Justice Ahsan said it was agreed that benches earlier formed would continue to hear the cases during the winter vacation from Dec 16, but a fresh court roster was issued.

The letter regretted that despite the fact that he was earlier told that Justice Masood was not available since he was unwell, the court roster signed by two members of the committee was issued and belatedly, the roster was presented to him as a fait accompli. “This is, to say the least, most improper since I was available throughout for consultation and discussion… I do not therefore agree with this roster,” Justice Ahsan observed.

“I, therefore, request that a fresh court roster issued in violation of Section 2 of the Act be recalled and the original court roster as agreed by the committee in its last meeting held on Oct 26, which was required to be continued till Dec 16 be accordingly continued.”

Justice Masood asked to recuse

Meanwhile, former CJP Jawwad S. Khawaja — one of the petitioners challenging the trial of civilians by the military court in the first round of litigation — on Monday requested the Supreme Court that Justice Masood, who will head the six-judge bench to hear the ICAs, should recuse himself.

The petition said the bench should refer the matter back to the committee for the reconstitution of the bench.

Referring to a note issued by Justice Masood to explain why he was not sitting on the nine-judge bench constituted by former CJP Umar Ata Bandial to hear the cases, the petition stated that the judge had already expressed his views. Through his finding, Justice Masood considers the subject petitions by necessary implication as “unusual”.

Published in Dawn, December 12th, 2023