ISLAMABAD: The Supreme Court rejected on Tuesday an application moved by Sumaira Malik objecting to the presence of a member of the bench hearing a review petition challenging her disqualification for possessing a fake degree.
A five-judge larger bench headed by Justice Jawwad S. Khawaja also postponed further proceedings on the review petition, enabling senior counsel Asma Jehangir, representing Sumaira Malik, to seek fresh instructions from her client.
A three-judge Supreme Court bench headed by former Chief Justice Iftikhar Mohammad Chaudhry had slapped a life ban on Sumaira Malik in 2012 to become a member of parliament for possessing a fake degree. The court had held that the BA degree of Ms Malik had been a result of impersonation, fraud and falsehood and, therefore, such a person was not qualified to contest for not being sagacious, righteous, non-profligate and honest as ordained by Article 62(1-f) of the Constitution.
Through a fresh application which was filed on Tuesday, the petitioner had pleaded before the larger bench to refer the matter to another bench to decide about the objections she had raised.
The petitioner had also referred to an earlier request made before a separate larger bench during earlier proceedings by senior counsel Hamid Khan representing her opponent Malik Umer Aslam for the constitution of a bench that should comprise Justice Jawwad S. Khawaja and Justice Gulzar Ahmed who were also members of the bench that had disqualified Sumaira Malik.
The applicant stated that the desire of Hamid Khan for inclusion of Justice Khawaja who had been his chamber mate for a long time would reflect upon the prestige of the judge and sanctity of the court. This would also shatter the confidence of the opposite party of impartiality of decision, she pleaded.
The counsel (Asma Jehangir), being officer of the court, had a duty to maintain decorum and dignity of the court and build the confidence of the litigant in its independence.
The applicant recalled that Chief Justice Iftikhar Mohammad Chaudhry had since retired whereas Justice Gulzar Ahmed, a member of the bench which delivered the judgment, was present in the larger bench and constitution of larger bench was quite in accordance with the spirit of Rule 8 of Order 26 of the Supreme Court Rules, 1980.
The change in the composition of the bench was not required and the objection of Hamid Khan would convey that the counsel was not comfortable with the larger bench in the absence of Justice Khawaja.
The case will again be taken up after two weeks.
Meanwhile, the same bench de-clubbed a petition of the Supreme Court Bar Association (SCBA) challenging the Supreme Court Rules, 1980, questioning the bar that restricts the change of a lawyer in a review petition who argued in the first round of litigation.
The petition was filed by former SCBA president Kamran Murtaza in line with April 10, 2014 resolution authorising association’s president to file the petition for the enforcement of fundamental rights under Article 10A (fair trial) and 18 (freedom of trade and business). The petition seeks to amend Order 26 Rule 6 of the Supreme Court Rules, 1980, on the grounds that it impinges upon the rights of the litigants to engage legal counsel of his choice and encourages monopolies in the practice of law.
“The rule indirectly blocks the fair access to justice, which is against the constitution,” the petition had argued, adding that the rule in question places unreasonable restrictions on the practice of an advocate to the Supreme Court by denying freedom to appear as a counsel in review, forcing an advocate to appear in a review against his or her free will, denying access to complete justice to a litigant, forcing litigant to engage a particular counsel against the constitution and denying a litigant freedom to choose a qualified counsel.
Justice Gulzar suggested to the SCBA representative that instead of seeking a judicial order the association should make a representation to the rule making committee of the Supreme Court to amend the court rules.
Published in Dawn, January 7th, 2015
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