JCP to name Justice Ayesha Malik’s replacement to hear military courts appeal
• Currently a member of the constitutional bench, Justice Ayesha Malik was also part of the five-judge panel that authored Oct 23, 2023 judgement on military courts
• Three-member committee tasks SC registrar with drafting rules for constitutional bench
ISLAMABAD: A three-judge committee that determines the fixing of cases before Supreme Court’s constitutional bench has decided to revert to the Judicial Commission of Pakistan (JCP), after it emerged that one of the judges on the existing seven-member bench was also part of the bench that pronounced the judgement on the military court trials on Oct 23, 2023.
The committee, constituted under Article 191A (4), decided to refer the matter back to the JCP after realising that Justice Ayesha A. Malik was a member of the five-judge SC bench that had declared the military trial of 103 civilians for their alleged involvement in the May 9 violence unconstitutional.
The decision was taken during the third meeting of the committee held on Nov 13 at the Supreme Court under the chairmanship of Justice Aminuddin.
Since the Oct 23 judgement is under challenge through intracourt appeals (ICAs) and Justice Malik was part of the earlier unanimous judgement, she cannot hear these appeals, the committee comprising Justice Aminuddin Khan, Justice Jamal Khan Mandokhail and Justice Muhammad Ali Mazhar observed.
While the JCP is expected to nominate another judge to hear the present case in Justice Malik’s place, any change in the composition of the constitutional bench is unlikely.
Recently, the Shuhada Forum Balochistan also moved an application before the Supreme Court seeking early fixing of a set of pending ICAs, preferably in the last week of this month, arguing that under Article 9 of the Constitution, the right to life and liberty of individuals cannot be curtailed in any manner whatsoever.
During the meeting, the committee deliberated on several critical matters to enhance the efficiency and transparency of case management, particularly for the constitutional bench.
To expedite the disposal of pending appeals under Order V Rule 3 of the Supreme Court Rules, 1980, the committee directed the office to categorise and compile cases within one week and to schedule five chamber appeals daily for hearing before each committee member. To address the increasing workload, the committee recommended requisitioning a competent civil judge to provide judicial assistance to the bench.
Meanwhile, the SC registrar was tasked with preparing draft rules regulating the practice and procedures of the constitutional bench in consultation with Justice Mazhar, with the final draft to be reviewed by the three-member committee for approval.
Case identification, tracking measures
In line with measures to improve case identification and tracking, the committee approved the use of a distinctive green stamp marked “Constitutional Bench” for all relevant case files.
This change will also be reflected in the court’s IT-based Case Flow System through integrated colour-coded tagging. Order sheets for constitutional matters were standardised to include the headings “In the Supreme Court of Pakistan”, “Constitutional Bench,” and the specific jurisdiction type, whether original, appellate, or advisory.
To ensure procedural clarity, all cases under Article 191A will include titles explicitly designating them as belonging to the constitutional bench of the SC. Furthermore, it was decided that parties filing such cases must prepare and submit at least seven paper books. Applications for early hearings will be placed before the committee until the procedural rules for urgent cases are finalised, ensuring prioritised attention to pressing matters.
The committee reiterated that the SC exclusively holds the authority to transfer cases under Article 186A and such matters will continue to be heard by regular benches. Only cases under Article 199 that involve significant constitutional questions or substantial issues of law will be referred to the constitutional bench.
In a significant step to enhance operational efficiency, the committee resolved to establish a dedicated branch to handle constitutional matters under Article 191A. This branch will be adequately staffed to ensure the smooth processing of cases.
Additionally, cases already transferred to the constitutional bench by the Supreme Court will be scheduled in accordance with the approved roster.
Published in Dawn, November 21st, 2024