ISLAMABAD: As the seven-member bench hearing the presidential reference against Justice Qazi Faez Isa asked Chief Justice of Pakistan (CJP) Asif Saeed Khosa to constitute a new bench after two of its members recused themselves, legal experts are divided over the pros and cons of the situation.
While some legal experts were of the view that the delay would not benefit the Supreme Court (SC) judge and he would want a speedy resolution of the issue, others said that it would be beneficial for Justice Isa because reconstitution of the bench would take some time and till the verdict is out, the incumbent chief justice’s tenure would have ended and his successor would not be so keen on deciding the case against a SC judge.
Similarly, there were different opinions on whether the bench stands automatically dissolved after two of its members recused themselves from hearing the case.
Talking to Pakistan Today, Senior Advocate Ali Zafar said that the bench stands automatically dissolved and only the chief justice has the authority to constitute a new bench to hear the reference against Justice Isa. He said that the chief justice can also constitute a five-member bench as there is no requirement of reconstituting a bench with the same number of members. However, he added, it would take some time as there is no time limit for the reconstitution of a new bench.
Zafar also said that the delay would not benefit anyone, neither Justice Isa nor the prosecutors, as the case would be just like a sword hanging on the judge’s head and he would want a quick verdict in the case. The prosecutors too want to resolve the case as quickly as possible so there is no direct beneficiary of this delay, he added.
Advocate Irfan Qadir said that the chief justice could form a new bench after the judges’ decision but it is not a legal requirement as the bench cannot be automatically dissolved in this way. Responding to a question, he said that Justice Isa could not raise objections on the remaining five members since the members he had found controversial had already recused themselves of the bench.
Advocate Arif Chaudhry was of the view that the judges took the right decision to recuse themselves of the bench since they could be direct beneficiaries of the decision as they are in the line of succession for the top judicial post.
He said that the chief justice has to constitute a new bench to hear the case, adding that the matter could be referred to a full bench, however, it would not happen because all judges who backed the reference against him would have to sit in the bench.
To a question, he said that since there is no time limit on the formation of a new bench, it would obviously benefit Justice Isa as he does not want the fate of his case to be decided during the tenure of the incumbent chief justice.
He said that there is hardly any precedent of Supreme Judicial Council (SJC) judges giving verdicts against their fellow colleagues. “Justice Shaukat Siddiqui was fired because of his open confrontation of a state institution,” he added.
Advocate Ghulam Dastagir was of the view that this is an administrative issue and the chief justice has the option of continuing with the remaining members of the bench or to form a new bench. However, he argued, the delay could not benefit Justice Isa as he enjoys a good relationship with the serving judges.
