ISLAMABAD: Sarina Isa, spouse of Justice Qazi Faez Isa, on Tuesday apologized to the Supreme Court after questioning the impartiality of Chief Justice of Pakistan (CJP) for not constituting a full court for hearing identical review petitions against an order passed by a 10-member bench on June 19, 2020 to the extent of direction given to the Federal Board of Revenue after the court squashed a presidential reference.
A six-member larger bench headed by Justice Umar Ata Bandial and comprising Justice Manzoor Ahmed Malik, Justice Mazhar Alam Miankhel, Justice Sajjad Ali Shah, Justice Munib Akhtar and Justice Qazi Muhammad Amin Ahmed resumed hearing the review petitions.
Sarina Isa, as well as counsel for the review petitions filed by Justice Qazi Faez Isa, Supreme Court Bar Association, Pakistan Bar Council and Sindh Bar Council appeared before the court and argued on the constitution of the bench. Sarina Isa raised objections over the formation of the bench and questioned as to how a six-member bench of the apex court can review the decision made by a seven member bench in the presidential reference. Quoting Rule 26-A of the Supreme Court, Sarina Isa contended that only a seven-member bench that delivered the verdict could hear review petitions and questioned as to why the rules of the Supreme Court are not being followed.
She asked all the six judges on the bench as to how a six-member bench could hear the review petitions against the decision given by a seven-member bench. She questioned the impartiality of the chief justice of Pakistan for not constituting a 10-member full court for hearing the instant review petitions. She questioned as to why other judges who were part of the full court excluded from the present bench, adding that her rights are being affected when they are excluded from the bench.
Both Sarina Isa and Justice Qazi Faez Isa had pleaded with the court to include Justice Mansoor Ali Shah, Justice Maqbool Baqir and Justice Yahya Afridi in the six-member bench. She contended that the chief justice should be impartial as he is a respondent in the instant matter and was a member of the Supreme Judicial Council (SJC).
At this, Justice Umar Ata Bandial asked Sarina Isa to be cautious about an institution and its head. “You are a family member, hence you should be careful while talking about an institution and its head as well,” he said. “You are crossing the limits while leveling an allegation over the chief justice, so don’t overstep your limits,” Justice Umar Ata Bandial told Sarina Isa. Justice Bandial observed that being the head of the institution, it is the prerogative of the chief justice to constitute a bench. He said the chief justice had left the matter with this larger bench to decide about the formation of the bench.
He recalled that earlier the main petitioner, Justice Qazi Faez Isa, had raised objections over two other members of the bench which the court had rejected, but the two judges recused themselves from the bench keeping in view the best traditions and practice of this court for adherence to the rule of law and the highest standards of transparency, impartiality and propriety.
Last year in September, Justice Sardar Tariq Masood and Justice Ijazul Ahsen had recused themselves from the seven-member bench constituted for hearing the presidential reference after Munir A Malik, counsel for Justice Qazi Faez Isa, sought their recusal.
Justice Bandial said a six-member bench cannot set aside the decision of a seven-member bench. He said that they are very much cautious as it is the matter of a judge of this court.
Meanwhile, Sarina Isa apologized to the court and submitted that she did not mean to offend any judge of the apex court and requested the court to constitute a 10-member full bench for hearing the instant review petitions. She submitted that although she was not a party in this case, her name was quoted in the judgment many times. She submitted that Law Minister Farogh Nasim and Shahzad Akbar had adopted an illegal way by collecting information in this matter. She questioned as to why she and her spouse were targeted and further questioned as to why she and her spouse have been made accountable and why not the spouses of the Law minister, Shahzad Akbar as well as judges were asked to file tax returns.
Justice Umer Ata Bandial observed that at present, the bench is not hearing the review petitions but is taking up the matter of the constitution of the bench. Justice Bandial told Sarina Isa that the court has noted down her points. He observed that it is the responsibility of the bar to mould opinion, adding that the judge could not directly go to the public. He said it is a special case for the court as the petitioner judge is not an accused at the moment. He observed that the independence of the judiciary is linked with its accountability. He noted that the court’s decisions are balanced, adding that on the one hand, the independence of judiciary is maintained after dismissing allegations against the petitioner judge and, on the other, the process of accountability is protected. “We have to give a verdict in accordance with the law and Constitution”, Justice Bandial maintained.
Meanwhile, the court held that after deliberations, a decision regarding the constitution of the bench will be taken and adjourned the matter for tomorrow (Thursday).
During the course of hearing, Munir A Malik, counsel for Qazi Faez Isa, submitted that the constitution of a six-member bench for hearing the instant review petitions is against Article 189 of the Constitution. He recalled that the review petition filed by former prime minister Zulfikar Ali Bhutto was heard by the same bench that heard the main case
At this, Justice Muneeb Akhtar asked the counsel whether he is including dissenting notes as part of the judgment. Malik replied in affirmative, adding that the Constitution does not say that only the majority decision can be reviewed.
Rashid A Rizvi, counsel for Sindh High Court (SHC) Bar Association, submitted that the instant review petitions are required to be heard by the said seven-member bench that had delivered the main judgment. He contended that excluding the three judges from the instant bench could raise an impression of an unfair trial which should be removed and those three judges should be included in the bench for ensuring a fair trial as required by the law and Constitution.
The counsel contended that it is a settled principle that justice should not only be done but seems to be done. He claimed that they have always fought for the independence of the judiciary and the supremacy of the Constitution.
Abdul Latif Afridi, counsel for Supreme Court Bar Association (SCBA), submitted that as he was not well, he could not make preparations for the instant matter and sought two weeks for the preparation. The court, however, asked the counsel to come prepared on Thursday and adjourned the matter.
