ISLAMABAD   -  Just days before the retirement of Chief Justice Mian Saqib Nisar, differences have emerged in top court as one of the justices has come forward with a damning critique of the outgoing chief justice.

Justice Syed Mansoor Ali Shah on Saturday raised serious questions about the independence of judiciary and conduct of the chief justice.

In a six-page note, Justice Shah expressed sharp reservations over the way Justice Qazi Faez Isa was expelled from a bench on May 9 last year at the Peshawar Registry in a human rights case.

A three-member bench of the top court was dissolved at the Peshawar Registry during the case regarding disposal of infectious wastes in the Khyber Pakhtunkhwa (KP) after Justice Isa had questioned the authority of the top court’s human rights cell to issue directives to any official without orders of the court.

Justice Isa in his dissenting note also had observed that the approval of Chief Justice is also not a substitute for an order of the Supreme Court.

After the unease among the members developed, the three-judge bench was dissolved and a two-judge bench headed by Chief Justice Mian Saqib Nisar and comprising Justice Mansoor Ali Shah was abruptly reconstituted, ousting Justice Isa.

Justice Mansoor Ali Shah in his note released on Saturday admitted that he made a mistake by sitting on the reconstituted two-judge bench.

However, he said that he did not sign the order passed by reconstituted two-judge after realising and examining the legal position and waited for the chief justice to pass an appropriate order in response to the note of Justice Isa.

Chief Justice Saqib Nisar is retiring on January 17, “therefore, I feel constitutionally obligated, as a member of the bench, to express my views regarding the Order of my learned brother and to pass my order in this case for 19.05.2018, when it came up for hearing before the bench”, said Justice Shah.

He wrote, “Any effort to muffle disagreement or to silence dissent or to dampen an alternative viewpoint of a member on the bench would shake the foundations of a free and impartial justice system, thereby eroding the public confidence on which the entire edifice of judicature stands.

“Public confidence is the most precious asset that this branch of the State has. It is also one of the most precious assets of the nation. Reconstitution of a bench while hearing a case, in the absence of any recusal from any member on the bench or due to any other reason described above, would amount to stifling the independent view of the judge.”

Justice Shah further observed that in the absence of a recusal by a member of the bench any amount of disagreement amongst the members of the bench cannot form a valid ground for reconstitution of the bench. “Any reconstitution of the bench on this ground would impinge on the constitutional value of independence of judiciary.”

He wrote that since then he waited for the chief justice to pass an appropriate order in the case to respond to the earlier Order passed by Justice Isa to explain the reconstitution of the bench that day. However, no such order has been passed till date and the case has been incorrectly reflected in the Bench Disposal Statement of the said date as an ‘adjourned case’, he added.

The judge in his note explained that at the time of hearing when Justice Isa raised legal question regarding treatment of human rights case under Article 184 (3), he [Shah] felt certain unease and proposed to the chief justice to take a brief recess in order to avoid any further escalation and embarrassment in open court.

“However, the chief justice, instead, announced in open court that the bench stands reconstituted and that the new two-member bench will re-assemble soon,” said Justice Shah.

Order XI of the Supreme Court Rules, 1980 provides for administrative powers of the chief justice to constitute benches.

However, once the bench is constituted the cause list is issued and the bench starts hearing the cases, the matter regarding constitution of the bench goes outside the pale of administrative powers of the chief justice and rests on the judicial side, with the bench.

Any member of the bench may, however, recuse to hear a case for personal reasons or may not be available to sit on the bench due to prior commitments or due to illness. The bench may also be reconstituted if it is against the Rules and requires a three-member bench instead of two.

“In such eventualities the bench passes an order to place the matter before the Chief Justice to nominate a new bench. Therefore, once a bench has been constituted, cause list issued and the bench is assembled for hearing cases, the Chief Justice cannot reconstitute the bench, except in the manner discussed above,” Justice Shah observed.

He added that the construct of judicial system is pillared on the assumption that every judge besides being fair and impartial is fiercely independent and is free to uphold his judicial view adding that this judicial freedom is foundational to the concept of Rule of Law.

Quoting a world renowned law expert, Justice Syed Mansoor Ali Shah stated that “Professor Aharon Barak points out that a judge ought to be aware of his power and the limits thereof. Naturally, the judge knows the law and the power it grants to the judge, but he must also learn the limits imposed on him as a judge. Second, a judge must recognize his mistakes. Like all mortals, judges err. A judge must admit this.”

He went on to quote from Professor Barak’s book, ‘The Judge in a Democracy’, “Third, in our writing and our thinking, judges must display modesty and an absence of arrogance. Statements such as those of Chief Justice Hughes that ‘we are under the Constitution, but the Constitution is what the judges say it is’ are not merely incorrect but also perniciously arrogant.”

Justice Shah admitted saying it was his mistake of sitting on the reconstituted two-judge bench adding that he did not sign the order passed by reconstituted two-judge after realising and examining the legal position and waited for the chief justice to pass an appropriate order in response to the note of Justice Isa.

“In my opinion, a bench, once it is constituted and is seized of a matter on the judicial side, cannot be reconstituted by the Chief Justice in exercise of his administrative powers, unless a member(s) of the bench recuses or for reasons discussed above. Therefore, the reconstitution of the two-member bench and the proceedings before the said bench on 9th May, 2018 in all the cases fixed before it are void and non-est.”

Justice Shah also agreed with Justice Isa that the reconstitution of the Bench by the chief justice in the case is unwarranted and unprecedented and undermines the integrity of the system.

“All those cases are to be put up for rehearing before an appropriate bench to be constituted by the Chief Justice and record of the court must reflect the correct status of these cases,” Justice Shah concluded.