The Supreme Court's website removed Senior Puisne Judge Justice Qazi Faez Isa's note about the larger bench's hearing on civilians' trials in military courts on Friday — the same day it was uploaded.
In his note backed by Justice Tariq Masood, the judge has said that he did not consider the nine-member bench a bench. He stressed that they should first issue a verdict on the Supreme Court Practice and Procedure Bill, 2023, and then constitute new benches.
The bench, led by Chief Justice of Pakistan (CJP) Umar Ata Bandial, comprising Justice Isa, Justice Masood, Justice Ijaz ul Ahsan, Justice Mansoor Ali Shah, Justice Muneeb Akhtar, Justice Yahya Afridi, Justice Ayesha Malik, and Justice Mazahir Ali Naqvi.
The senior judge's note, which was 30 pages long, said that he has not heard any case after the suspension of the Supreme Court (Practice and Procedure) Bill, 2023.
"If I hear the cases now, I will violate my constitutional and legal position," said Justice Isa, adding that the CJP has "never denied his stance till today, but he did not even bother to answer."
Justice Isa's note has been removed once before as well from the website after it was uploaded, in which he declared a six-member bench "illegal". He had ordered to adjourn the cases until rules for Article 184 (3) were formed during the hearing of the case examining the grant of an additional 20 marks to Hafiz-e-Quran pre-medical candidates for admission into MBBS/BDS courses.
However, the senior judge also said that he was not recusing himself from the hearing of the pleas against the trial of civilians in military courts.
"I am aware that the chief justice has involved his colleagues in an unnecessary conflict for no reason and in my opinion, the CJP should not do this," he said, adding that a constitutional institution like Supreme Court cannot run on the will of a single person.
Justice Isa said that the Supreme Court (Practice and Procedure) Bill, 2023 applies to CJP Bandial and two senior judges. "As the senior most judge, it is my duty to keep the direction right," he wrote in his note.
The note also said that a letter was written to CJP Bandial on May 17 in which the Supreme Court Practice and Procedure Bill was also referred. He said that the letter pointed out that the bench to hear cases will be constituted by the CJP a committee of two senior judges.
"The law was not implemented as it was suspended by the SC even before it was enacted. I pointed out that any petition against the law would either be rejected or rejected," he noted.
Justice Isa said that the chief justice has put him in a state of uncertainty and it can only be resolved if a decision is made regarding the petitions against this law or the stay order is withdrawn.
He said that the bench hearing the petitions related to the Supreme Court (Practice and Procedure) Bill is headed by the CJP and he himself can answer when a verdict will be announced.
"The interest of citizens therefore will be best served to postpone the hearing of this case, and of all other cases under article 184(3) of the Constitution, till the matters noted hereinabove are first attended to by making requisite rules in terms of article 191 of the Constitution," added the note.
"In conclusion, let me categorically state that how my distinguished colleagues decide the pending petitions is their discretion. All that I look for, and which the country undoubtedly expects, is the earliest possible determination of the matter. I have been compelled to write this note in response to the aforesaid query of the Hon'ble Chief Justice. Since a number of my colleagues have enquired why I am not sitting in Court, I shall also be sharing this note with them," he concluded.
The petitions regarding the trial of civilians in military courts were heard by a seven-member bench comprising CJP Bandial, Justice Ahsan, Justice Shah, Justice Akhtar, Justice Afridi, Justice Malik, and Justice Naqvi.