ISLAMABAD: Justice Syed Hasan Azhar Rizvi, who was part of a five-judge Supreme Court bench that overturned its earlier decision in the NAB amendment case, observed on Wednesday that judicial comity requires that even when judges disagree with decisions of their peers, they do so with respect and constructiveness.

Justice Rizvi, who consented to the majority judgement authored by Chief Justice of Pakistan (CJP) Qazi Faez Isa, regrettably, noted that he could not endorse the reasoning, as it lacked sufficient justification for the issues at hand.

On Sept 6 this year, while deciding federal government’s intra-court appeals (ICA), a five-judge SC bench headed by CJP Isa declared the Sept 15, 2023, majority judgement illegal, which had held that public representatives benefiting from the PDM coalition government’s amendments to the National Accountability Ordinance (NAO) would again face corruption references.

Justice Rizvi expressed concern over the unreasonable remarks made about former Supreme Court judges in the Sept 6 majority judgement, which reviewed the verdict on appeal.

In his note, Justice Rizvi raises concerns over remarks about former judges in NAB amendments case ruling

“In my humble opinion, judicial comity requires that, even when we disagree with the decisions of other judges, we do so with respect and constructiveness,” Justice Rizvi observed, adding that criticism should focus on legal principles rather than disparaging those who authored the original decision.

In his majority judgement, CJP Isa had observed that the judges who passed the initial judgement in the NAB amendment case, namely then CJP Umar Ata Bandial and former judge Ijazul Ahsan, were also part of the bench which had initially heard the petitions through which the Supreme Court (Practice and Procedure) Bill, 2023 Bill, which later became an Act (SCPPA), was challenged and they suspended its operation.

Thereafter, the judgement pointed out, these petitions were not fixed for hearing, which was contrary to the practice of this court because once the hearing of a case had commenced it was not discontinued, particularly when there was no reason to do so. However, these petitions were not listed for hearing for the next 100 days. The petitions which had challenged SCPPA were next fixed for hearing on Sept 18, 2023, after the incumbent CJP assumed office.

Moreover, attention was drawn to SCPPA, which required that the petition must be heard by ‘not less than five judges of the Supreme Court’, but the objection was rejected through an order of Aug 29, 2023 issued by then CJP Bandial and Justice Ijazul Ahsan, the judgment reminded.

In his note, Justice Rizvi observed that though he concurred with the ultimate conclusion, he felt compelled to offer his own reasoning in a manner that aligns with the respect and decorum expected within “our judiciary hierarchy”. He said CJP Isa perhaps made these remarks because he was hearing ICA under SCPPA and as such assumed himself as an appellate/superior authority over a bench of the same court which had passed the earlier judgement.

If the CJP was really considering it in this manner, he, therefore, misconceived his position and the SCPPA as well, Justice Rizvi observed, adding that petitions under Article 184(3) of the Constitution were being filed and adjudicated by the Supreme Court as a routine matter.

After the enactment of SCPPA, now a judge of the Supreme Court may sometimes be the member of a bench that originally decides a petition under Article 184(3) of the Constitution and sometimes he may be the member of the bench that may decide ICA under SCPPA against an original order/judgement in that petition.

“Thus, if a member of an appellate bench makes remarks against a member of the bench that issued the original judgement, it is likely that the other member would respond when he gets a chance to be a member of an appellate bench against his order,” Justice Rizvi feared.

This may lead to a cycle of passing remarks against one another, which would not only become routine but also diminish the stature of the Supreme Court, both in the eyes of the people of Pakistan and internationally.

To sum up, it must be remembered that ICA is not an appeal against the decision of a subordinate court. Moreover, Article XI of the Code of Conduct must be more strictly adhered to when a judge of a superior court expresses dissent or disagreement with the view of another judge of the same court, as judges of the superior courts, including CJP are equal, Justice Rizvi emphasised.

“It is, therefore, desirable that dissent and disagreement never take the form of comments akin to those of an appellate forum but should always be expressed with courtesy and restraint. Dissent and disagreement should remain confined to matters of law and, under no circumstances, extend to the conduct or personality of another judge,” Justice Rizvi suggested.

Published in Dawn, October 24th, 2024