Justice Markandey Katju: My concerns about Pakistan SC’s full-bench hearing

Justice Markandey Katju

By Justice Markandey Katju–

(Justice Markandey Katju is a former Judge, Supreme Court of India, and former Chairman, Press Council of India. The views expressed are his own)

A full bench consisting of all 15 Judges of the Pakistan Supreme Court heard petitions on September 18, challenging the validity of the Supreme Court (Practice and Procedure) Bill 2023 made by Parliament, which required benches in the Court to be constituted not by the Chief Justice alone but by a committee consisting of three seniormost judges of the court.

The bill had earlier been stayed by an eight-member bench of the court presided by former CJP Bandial.

I had earlier written an article saying that this hearing was illegal because the bench included the new Chief Justice Qazi Faez Isa, who should have recused himself from the bench since the case pertained to his powers.

The hearing, which was broadcast live, was disappointing, and the court seemed less like a court having a serene and tranquil atmosphere, and more like a village panchayat.

On seeing the proceedings (which lasted till 6.30 p.m.), it was clear that the Chief Justice wanted to dominate, as he wanted to quickly vacate the stay order earlier granted by the eight-member bench.

What he seemed to have forgotten was that the Chief Justice is only first among equals, and in judicial matters his voice is no different from others on a bench.

There is an oft quoted statement of Francis Bacon, former Lord Chancellor of England, that “a much-talking judge is an ill-tuned cymbal.” In other words, judges should hear more and talk less during a hearing in court.

Chief Justice Qazi Faez Isa (pictured above) exemplified a much talking judge in this case. He spoke a lot, often rudely, and often interrupting counsel, and sometimes even some companion judges.

In fact, at one stage, one of the counsels, Imtiaz Siddique, said that if he was ridiculed and not allowed to develop his point he would withdraw from the case.

Another counsel was threatened by imposition of costs.

If another Judge asked a question to counsel, the Chief Justice would interrupt and tell the counsel not to reply immediately, but note down the question, and answer later, after other judges had also asked their questions, or by written submissions.

This was an unknown and unprecedented method of conducting a court proceeding. When a judge asks a question in court it must be answered by the lawyer immediately, not later or in writing.

In fact Chief Justice Isa himself asked for replies to his questions immediately, not later. How could he expect a different course of action when it came to questions by other judges? Qazi Faez Isa’s abrasive and often aggressive behaviour in court was in sharp contrast to the polite observations of some other judges like Justices Ijaz ul Ahsan, Munib Akhtar, Ayesha Malik and Musarrat Hilali.

The Chief Justice failed in his effort to vacate the stay order, and the case has been adjourned to 3rd October. I am afraid that the new Chief Justice, who only recently assumed office, has made the Supreme Court, which was already divided at the time of former CJP Bandial, even more sharply divided. Turbulent times are ahead for the Pakistan Supreme Court.

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