In a letter to the Chief Justice of Pakistan (CJP), Justice Qazi Faez Isa raised objection on the decision of larger bench formation in the journalists’ harassment case and said that it was nothing but an attempt to coincide with the Constitution.
A two-judge Supreme Court (SC) bench, including Justice Isa and Justice Jamal Khan Mandokhel, had taken up the case on August 20 which was applied by the Press Association of the Supreme Court in connection with frequent incidents of harassment of journalists.
The same day, the two-judge bench observed that the application had highlighted matters of public importance in terms of securing the fundamental rights; therefore a suo motu action should have been taken in the light of Article 184(3) of the Constitution.
However, on Aug 23, the acting Chief Justice Umar Ata Bandial directed to constitute a larger bench with five judges including Justice Umar Ata Bandial, Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Qazi Muhammad Amin Ahmad and Justice Muhammad Ali Mazhar to ponder the things in more detail by putting the Aug 20 order in abeyance.
Formation of larger bench in the presence of an already established bench would be in collision with the Constitution, Justice Isa stated
To this, Justice Isa penned down a letter and asked the ACJP whether one bench could monitor the working of another bench as per the Constitution. He clarified that the five-member bench did not have the monitoring mandate and therefore could not hear the said case.
He added that any order passed by the new bench would have been of no legal effect and be considered as null and void. He further mentioned that he and the other justice of two-member bench were not intimated about the formation of larger bench.
Justice Isa stated that the case could be reviewed by the new bench only if after the decision by the two-member bench, the case was found to be dealt beyond the law or the Constitution. He argued that if one bench was assigned the responsibility of checking and monitoring the performance of the other, it would have been devastating for the judicial system.
Any order passed by the new bench would be considered null and void in the light of the Constitution, Justice Isa wrote
Justice Isa mentioned that the Aug 20 order was passed only after it was observed that the matter was of public importance and required enforcement of fundamental rights. He further added that since the case was accompanied by urgency and time sensitivity; a quick and immediate attention was required which the Constitution had authorized the court to exercise under Article 184(3) in the form of suo motu.
Justice Isa continued that it was the matter of journalists’ lives and in his opinion; any delay in action was equivalent to the dereliction of duty.
He also referred to the suo motu cases which were taken in the past even if the issues were not found to be within the purview of the Article 184(3) or met its compulsory requirements.
Justice Isa also condemned the role of the SC registrar in this regard and stated that before taking up the charge of the given portfolio; he had worked in the Prime Minister’s Office. He added that it was in contradiction with the Constitution and that the judiciary should have been kept separate from the executive.