February 12th, 2021
By Ahmed Saeed
Senior lawyers and bar representatives have termed the decision of Chief Justice of Pakistan Gulzar Ahmed barring fellow judge Justice Qazi Faez Isa from hearing cases against Prime Minister Imran Khan as unprecedented in the judicial history of the country.
The CJP Justice Gulzar Ahmed asked Justice Qazi Faez Isa not to hear cases involving the Prime Minister In a court order issued late Thursday, February 11, in a case relating to release of funds to lawmakers ahead of the Senate elections. “In these circumstances, it would not be proper for the judge to hear the matter considering that he had already filed a petition against the Prime Minister of Pakistan, in his personal capacity,” says the written order issued by Chief Justice Gulzar Ahmed. Justice Isa and Justice Justice Maqbool Baqar had taken notice on media reports over release of funds, asking the CJP to constitute a larger bench for the hearing. The five-member bench comprises Chief Justice of Pakistan Gulzar Ahmed, Justice Mushir Alam, Justice Umar Ata Bandial, Justice Qazi Faez Isa and Justice Ijaz Ul Ahsan
Speaking to Voicepk.net, Latif Afridi, president of the Supreme Court Bar Association, was of the opinion that the chief justice could have avoided the controversy by excluding Justice Qazi Faez Isa while he was constituting the bench. “The CJP should have excluded Justice Qazi Faez Isa while constituting the bench knowing that the judge had already filed a petition against the Prime Minister,” Afridi said, adding that the error could have been made on part of court staff making the cause list or they failed to point out of the fact to the CJP. “Justice Qazi Faez Isa should have himself recused himself from the hearing in order to avoid conflict of interest and impression of bias,” he said.
Abid Saqi, former vice chairman of Pakistan Bar Council, termed the CJP’s decision unconstitutional, saying a judge could not give a decision against a fellow bench member. “Firstly, the bench was constituted by the Chief Justice. The CJP should have excluded him then and not when the bench has reached verdict. All members of the bench are equal in stature under the law. The decision of barring a judge from hearing is unusual, unjustified and unprecedented,” Saqi said.
In his opinion, senior jurist Yasin Azad said the law clearly states that only a judge himself can decide whether to hear a case or not. “In its judgments, the Supreme Court has made clear that it’s the discretion of a judge to hear or not to hear a case,” adding that the order from the bench was unprecedented. “In case of dissent, a bench member can write a dissenting note in the judgment but incorporating a bar on a fellow judge in the bench judgment is beyond understanding,” he said. Azad said the decision has fueled suspicions of rift between members of the apex court. “It would be better if the CJP should have chosen other measures to exclude the judge from hearing cases against the prime minister instead of issuing a written order,” he said.
Senior lawyer from Balochistan, Kamran Murtaza said it would have been better that the chief justice should have dissolved the bench during the hearing instead of issuing a written order against a fellow apex court judge. “The CJP had two options. He could have excluded Justice Qazi Faez Isa from the bench or could have dissolved the bench in the course of the hearing,” Murtaza said, adding that the decision goes against the grain of the Supreme Court decision that a judge would himself decide whether to hear a case or not. He regretted that the decision would go down in judicial history as one of the first order against a fellow coming from another judge on the same bench.
Senior jurists opined that the respected apex court judges should refrain from issuing directives against any fellow judges in their written orders as this would strengthen the impression of strained relations within members of the bench.