ISLAMABAD: Supreme Court Bar Association (SCBA) President Abdul Latif Afridi told the Supreme Court (SC) on Tuesday that the chief justice of Pakistan had no discretion for constituting a bench for hearing a review petition.
He submitted his written arguments before the SC over the constitution of a bench for hearing review petitions in presidential reference, filed against Justice Qazi Faez Isa.
“As the law stands, the court or the chief justice has no discretion as far as the number of judges of the review bench is concerned, because judgment/ order of the majority is the judgment/ order of the court,” Afridi stated in 14-page written arguments.
Moreover, he contended that the chief justice of Pakistan did not have much discretion when the same judges were physically available and practice of the court was no different.
“However, if after reasonable efforts, the presence of a judge/ judges of the original bench cannot be ensured then exceptionally other judges could be made part of the review bench,” the SCBA president added.
He contended that circumstances of every case might differ; however, in the present case, all judges were available except one judge who recently retired.
In the case under examination, if the court does come to the conclusion that under the circumstances it has discretion then that discretion in a case like this ought to be used where it “does most credit to the nation”, Lateef Afridi submitted.
He submitted that the hearing of the instant review petitions by a bench of judges lesser in number, and with the exclusion of three dissenting judges, invariably, gives rise to the perception that dissident judicial voices are being silenced.
This naturally raises questions of transparency and impartiality, whether well-founded or ill-founded,” Afridi contended, adding that transparency and impartiality occupy a central place in the adjudicative arena.
A 10-member full court, headed by Justice Umar Ata Bandial, on June 19, in a short order, quashed the reference of legal effect, holding the proceedings before Supreme Judicial Council (SJC) as having abetted.
Seven judges of the full court had referred the matter to the Federal Board of Revenue, directing it to initiate tax proceedings against spouse and children of Justice Qazi Faez Isa.
Later on, in order to hear review petitions against the judgment, the chief justice formed a seven-judge bench comprising all the judges who wrote the majority judgment. One of the members, Justice Faisal Arab, retired on Nov 3 and later another bench was announced comprising the remaining six judges.
Three judges including Justice Maqbool Baqar, Justice Syed Mansoor Ali Shah and Justice Yahya Afridi, who held the minority view, were excluded from the larger bench.
In his written arguments, Abdul Latif Afridi cited the remarks of Lord Chief Justice Hewart of England and Wales, who had famously pronounced: “It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.
“Thus at this junction, keeping the very real public perception of dissident judicial voices being silenced in mind, and the fact that the eyes of the entire nation are upon this court, this court must decide with respect to the exercise of its judicial discretion (if the fate of the constitution of the bench hinges on it) an answer to the question;
“Which conception does most credit to the nation,” Latif Afridi submitted.
He further submitted that this court or the chief justice, when faced with the exercise of discretion as opposed to strict application of law, meaning there is hardly any discretion, then the discretion must be exercised in the favour of the interpretation that enhances the good perception of our justice system in the eyes of nation and the legal community.
“It is vital to clarify here that perception of our justice system is based primarily of two things: one, perception of the courts and other, perception of the law,” Afridi submitted, adding that negative perception of the court, resulting in lack of public trust, do more damage to the justice system then negative perception of the law.
For example, where the court has discretion to interpret certain law or rules, then it must do so in a way that enhances the perception of the justice system especially when the decision will improve perception of the court.
However, if the court is strictly bound to apply law and has no discretion it in whatsoever, then it can completely disregard the perception and apply the law because when a law requires strictly application then it is not the perception of the court but perception of that particular law that primarily is undermined and it can be rectified through better legislation in the parliament.
Latif Afridi contended that the two reasons one can think of for excluding the dissenting judges from the bench constituted for review could be the rational behind the decision.
