ISLAMABAD - After being excluded from a three-member bench hearing a human rights case, Supreme Court judge Qazi Faez Isa has termed the dissolution and the reconstitution of the bench by the chief justice “unwarranted and unprecedented”.

Referring to a development at the Supreme Court Peshawar registry when a three-member SC bench headed by Chief Justice Saqib Nisar, hearing a human rights case pertaining to hospital waste, was dissolved after he (Justice Isa) raised objection, Justice Isa in a three-page note said that “had he not objected to the procedure of entertaining the human rights application by the chief justice, it would have weighed heavily on his conscience”.

“I am constrained to write this, as not doing so, would weigh heavily on my conscience and I would be abdicated my responsibility as a judge,” observed Justice Isa in the note questioning the dissolution and reconstitution of the bench by chief justice at the SC Peshawar Registry.

In an unusual development on May 9, the three-member bench of the top court was dissolved after Justice Isa questioned the authority of the top court’s human rights cell to issue directives to any official without orders of the court.

“The approval of the Hon’ble Chief Justice is also not a substitute for an order of the Supreme Court,” he observed.

Regarding the unusual development at Peshawar Registry, Justice Isa wrote that “the file regarding disposal of infectious hospital wastes in the province of Khyber-Pakhtunkhwa comprised all of two pages with the signatures of top court’s Human Rights Cell (HRC) Director”. 

 “Due to complete lack of material on file and to understand the genesis of the case, I (Justice Isa) enquired whether the said Director was present in court so we could examine the file (if any) containing the material (if any) on the basis of which he had written the aforesaid note, and whether the original jurisdiction of the Supreme Court under Article 184(3) of the Constitution of the Islamic Republic of Pakistan (“the Constitution”) could be invoked. The learned Advocate General of the province (who was standing at the rostrum) was asked to read Article 184(3).”

He observed that “once the Supreme Court is satisfied that these two conditions (public importance and Fundamental Rights) are involved then the question of enforcement of the relevant Fundamental Rights arises”.

 “Needless to state the powers that the Constitution has granted to the Supreme Court cannot be assumed by the said Director. The approval of the Hon’ble Chief Justice is also not a substitute for an order of the Supreme Court.”

“However, before Article 184(3) could be read, the Hon’ble Chief Justice intervened and said that he will be reconstituting the Bench and suddenly rose up,” wrote Justice Isa.

 “The Bench was then presumably reconstituted, I say presumably because no order was sent to me to this effect,” said Justice Isa adding that “he was excluded after the reconstitution of the bench”. 

“This for me is a matter of grave concern. In my humble opinion, it is unwarranted and unprecedented to reconstitute a Bench, in such a manner, whilst hearing a case.” Justice Isa observed adding, “to do so undermines the integrity of the system, and may have serious repercussions.”

“Before exercising its original jurisdiction, the Supreme Court must satisfy itself that the jurisdiction it is assuming accords with the Constitution. However, even before any opinion could be expressed thereon the matter was cut short.” 

The issue of dissolution and reconstitution was surfaced when the bench was hearing a human rights case pertaining to hospital waste disposal and KP Health Secretary Abid Majeed was reading out from a report on incinerators in government hospitals.

The KP official said they had submitted the report on the directives of the human rights cell of the apex court.

Justice Isa had questioned that the cell had no powers to issue directives without specific orders of the Supreme Court, and then inquired whether the cell’s director was present in the courtroom. At this, the chief justice pronounced that the bench would be reconstituted.