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Shaping new Supreme Court of Pakistan .....

Policy for fresh benches on anvil: CJP-designate Yahya Afridi

Nasir Iqbal
October 25, 2024

• Justice Afridi says separate category to be created for cases where laws are challenged, or those that call for interpretation of Constitution
• Justice Shah won’t join special benches until full court decides validity of practice & procedure ordinance
• CJP Isa retires today, will attend full court reference, luncheon hosted by successor



ISLAMABAD: In line with the 26th Amendment that entailed the formation of constitutional benches to hear cases involving constitutional matters, Chief Justice-Designate Yayha Afridi on Thursday said a separate category would be created for cases where any law had been challenged or needed constitutional interpretation.

On the other hand, Justice Mansoor Ali Shah, who was supposed to become the top judge in line with the seniority principle, once again sought a full court meeting to determine the constitutional validity of a recent ordinance that amended the Supreme Court Practice and Procedure Act 2023.

During the hearing of a case relating to the right of pre-emption (Shufa) by a three-member bench, Justice Afridi disclosed the registrar’s office had been instructed to follow a certain policy regarding the transfer of pending cases to the constitutional bench to be formed under the 26th Amendment.

During the hearing, Justice Shahid Waheed observed that the present case should be heard by the constitutional bench since it required constitutional interpretation. Senior counsel Salman Aslam Butt endorsed the view, saying he did not want to say that but it was the right approach. At this Justice Afridi observed that he had directed the registrar to create a separate category for such cases and then they would be transferred as needed.

A number of Supreme Court benches, for the last few days, have been transferring cases to the constitutional benches for their final hearing.

Under the amendment, all cases that required constitutional interpretation or filed under Article 184(3) of the Constitution would be heard by a constitution bench consisting of five judges to be nominated after the new CJP takes oath on Oct 26.

Practice & Procedure law

In a second letter to outgoing CJP Qazi Faez Isa, Justice Syed Mansoor Ali Shah, who is on ex-Pakistan leave to perform Umrah, explained he did not become part of the bench hearing a tax matter because of the ordinance that changed rules regarding the bench-formation committee.

Justice Mansoor in his letter to the CJP, who heads the three-judge committee constituted under the Supreme Court (Practice and Procedure) Act 2023, said for the reasons recorded in the Sept 23 letter sent to the committee secretary, the contents of which despite requests were not recorded in the minutes of the 19th meeting of the committee, he could not be a part of the bench.

The judge said he would not participate in special benches formed by the new committee until the validity of the ordinance was determined by the full court or the earlier version of the committee — that included the three senior-most judges — was restored. It may be noted that following the ordinance, CJP Isa removed Justice Munib Akhtar from the committee and added Justice Aminuddin to it.

Justice Mansoor said he would only attend sittings of regular benches to hear the cases of ordinary litigants in the larger public interest. For these reasons, he disassociated himself from the bench, the letter said.

The senior puisne judge also quoted from ‘A Man for all Seasons’ where Sir Thomas More said: “I think that when statesmen forsake their own private conscience for the sake of their public duties, they lead their country by a short route to chaos.” “We often forget, when in power, people of this country are watching our actions and that history never forgives,” Justice Shah reminded.

Full court reference for CJP Isa

On his last working day, the outgoing chief justice, Qazi Faez Isa, heard a case related to the felling of 218 trees in Khyber Pakhtunkhwa.

In his remarks, the outgoing CJP appreciated that like a few countries in the world, the Constitution now included a reference to environmental protection.

Article 9A of the Constitution inserted through the 26th Amendment ensured that every person would be entitled to a clean, healthy and sustainable environment, he added.

Justice Naeem Akhtar Afghan and Justice Shahid Bilal were also members of the three-judge bench. CJP Isa remarked that due to pollution, some cities were becoming unliveable.

After attending the full court reference today, CJP Isa will also attend a luncheon reception being hosted by CJ-designate Justice Afridi on the Supreme Court premises.

It may be noted that the CJP had already declined a dinner arranged by the Supreme Court at government expense, saying the dinner would have cost the nation Rs2 million.

Published in Dawn, October 25th, 2024
 
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Choice of new CJP splits legal community

Nasir Iqbal | Wajih Ahmad Sheikh
October 24, 2024

• SCBA, Sindh Bar Council stand by decision to appoint Justice Yahya Afridi
• Karachi bar, Balochistan lawyers, LHCBA warn of demonstrations in support of Justice Mansoor Ali Shah
• President okays new appointment, oath-taking to be held on Saturday


ISLAMABAD / LAHORE: With Justice Yahya Afridi set to take oath on Saturday as the chief justice of Pakistan, the legal community across the country remains divided, with some bodies warning the government that their opposition to the constitutional amendments could snowball into a full-fledged movement.

After the promulgation of the 26th Amendment, which allowed the government to shun the seniority principle for the CJP’s appointment, President Asif Ali Zardari on Wednesday notified the appointment of Justice Yahya Afridi as the incoming CJP.

A ceremony for the oath-taking of the new CJP will be held on Saturday at the Presidency, a day after the retirement of Justice Isa, where around 300 guests are likely to participate.

Soon after his appointment, Justice Afridi went to the chambers of the incumbent Chief Justice of Pakistan (CJP) Qazi Faez Isa, where the latter congratulated him on his selection as the next chief justice.

Later, Justice Syed Hassan Azhar Rizvi and Justice Shahid Waheed met Justice Afridi to congratulate him on his nomination. Attorney General for Pakistan (AGP) Mansoor Usman Awan also met the CJP and Justice Afridi on Wednesday.

On the other hand, Justice Isa, who is busy with chamber work, is set to retire on Oct 25, and a full court reference will be held in Courtroom No. 1 on Friday to bid him farewell.

Media reports suggested that Justice Mansoor Ali Shah, who would have become the CJP had the 26th Amendment not been in place, will not be in the country as he is proceeding on Umrah along with his family.

‘Split in community’

Though many in the legal community are unhappy with the so-called ‘Constitutional Package’, the opposition to the judicial reforms enacted may not translate into a countrywide movement due to a split between two major political groups of the country’s legal fraternity — the Independent and Professional groups.

“The legal fraternity was united when Gen Parvez Musharraf deposed the sitting chief justice Iftikhar Muhammad Chaudhry in 2007,” said a lawyer who did not wish to be named, recalling the movement for the ‘independent’ judiciary, which resulted in the reinstatement of all the deposed judges. He said there was a clear division in the bar as both major groups were divided on the passage of the 26th Amendment.

Ahsan Bhoon, who heads the Independent panel associated with the late Asma Jahangir, hailed the appointment of the new chief justice, saying the nomination of Justice Afridi was not based on personal preference or dislike. Talking to Dawn, Mr Bhoon said Justice Afridi was an undisputed judge and his appointment was a positive development.

Mr Bhoon, also a former president of the Supreme Court Bar Association (SCBA), said Justice Syed Mansoor Ali Shah and Justice Munib Akhtar were highly competent judges, adding the parliamentary committee had the mandate to appoint the next chief justice as per the criterion laid down in the Constitution.

Shahzad Shaukat, the incumbent president of the SCBA, praised Justice Afridi as one of the finest judges, saying his appointment followed the proper constitutional process.

‘Entire judiciary being punished’

On the other hand, at a press conference held in the auditorium of the Lahore High Court Bar Association (LHCBA) on Wednesday, Senator Hamid Khan said the entire judiciary was being punished for the disqualification of former prime ministers Yousuf Raza Gilani and Nawaz Sharif. He claimed the lawyers rejected the constitutional amendments.

The PTI-aligned Hamid Khan advised the CJP-designate to wait for his turn instead of accepting the position at this time, saying people would view him in a negative light if he accepted the role under prevailing circumstances.

He claimed that appointing the third senior-most judge as the chief justice was an attempt to create divisions within the judiciary. He described the recent developments in the country as “some of the darkest days”, saying the amendments were an assault on the Constitution and judiciary.

He called for judicial appointments to be made on the basis of seniority, asserting that lawyers would only recognise the senior-most judge as the chief justice.

Pakistan Bar Council member Ishtiaq A. Khan, who also belongs to the professional group, said the amendments were not constitutional but a form of ‘martial law’. He accused the ruling parties of employing political tactics to undermine the judiciary’s independence.

LHCBA President Asad Manzoor Butt stated that for the past two months, there had been attempts to undermine the judiciary. Mr Butt, leader of the Hamid Khan-led professional group, said the 26th Amendment was a political rather than a constitutional amendment.
 
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SC holds full court reference to bid farewell to CJP Isa

Dawn.com | Umer Mehtab
October 25, 2024

AGP Mansoor Usman Awan speaks before a full court reference held at Supreme Court in honour of outgoing CJP Qazi Faez Isa on Oct 25, 2024. — DawnNewsTV

AGP Mansoor Usman Awan speaks before a full court reference held at Supreme Court in honour of outgoing CJP Qazi Faez Isa on Oct 25, 2024. — DawnNewsTV
The Supreme Court on Friday held a full court reference to bid outgoing Chief Justice of Pakistan (CJP) Qazi Faez Isa farewell, where senior lawyers recounted his tenure’s highlights.

Justice Isa was sworn in as the 29th CJP on Sept 17, 2023 at a symbolic ceremony, where his wife Sarina Isa was standing beside him as he read out the oath.

Justice Yahya Afridi, who was nominated by a newly formed Special Parliamentary Committee (SPC), is set to take oath as the next CJP tomorrow (Saturday).

The full court reference was live-streamed on the Supreme Court’s website and its YouTube channel.

Senior puisne judge Justice Mansoor Ali Shah, who would have become the CJP had the 26th Amendment not been in place, was unable to attend the gathering as he was gone for Umrah along with his family.

The seats next to the CJP — usually occupied by Justice Shah and Justice Munib Akhtar — were seen taken by Justice Afridi and Justice Aminuddin Khan instead due to their absence.

Justices Ayesha Malik, Athar Minallah and Malik Shahzad Ahmad Khan were also not present at the occasion.

According to a Dawn.com correspondent present at the SC, a total of 16 judges, including two ad-hoc and two of the Shariat Appellate Bench, attended the event. Among the 16 judges were Justices Jamal Khan Mandokhail, Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi, and Shahid Waheed.

Justice Isa’s family, including his wife Sarina Isa, was also present at the full court reference.


 Supreme Court judges attend a full-court reference for CJP Qazi Faez Isa’a farewell on Oct 25, 2024. — YouTube/SCPProceedings

Supreme Court judges attend a full-court reference for CJP Qazi Faez Isa’a farewell on Oct 25, 2024. — YouTube/SCPProceedings

Attorney-General for Pakistan (AGP) Mansoor Usman Awan, Pakistan Bar Council (PBC) Vice-Chairman Farooq H. Naek, and Supreme Court Bar Association (SCBA) President Shahzad Shaukat spoke on the occasion, recalling highlights of Justice Isa’s tenure.

Speaking at the rostrum, AGP Awan said the CJP had remained steadfast on the principles of the Constitution, law, democracy and accountability.

“Even before becoming the chief justice, Qazi Faez sahib had a prominent and successful career as a lawyer,” he stated, adding that CJP pioneered the fundamental rights of freedom and expression, as well as women’s rights.

The AGP praised the outgoing top judge for giving “several historical decisions”, the AGP said, citing the verdict in the Faizabad sit-in case.






“He also clarified the role of the law enforcement agencies,” Awan said, recalling that Justice Isa also summoned a full court as soon as he assumed his office and initiated live-streaming of case proceedings.

The attorney-general added that the CJP had an important role in the February 8 general elections as he “united all stakeholders”.

After attending the full court reference, CJP Isa will also attend a luncheon reception being hosted by CJP-designate Justice Afridi on the apex court’s premises.
 
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