Justice Ayesha A. Malik Recused from Constitutional Bench Amid Legal Complications

Islamabad:Justice Ayesha A. Malik, who was part of the Supreme Court bench that decided the case concerning the trial of civilians in military courts, has now recused herself from hearing the intra-court appeal in the same matter. This is due to her prior involvement in the case, which disqualifies her from being a member of the constitutional bench that will hear the appeal.

The complication arises because the original bench that heard the case consisted of seven judges, and the constitutional bench is also set to have seven judges. To resolve this issue, the matter will be referred to the Judicial Commission of Pakistan for an expedited hearing.

On November 13, 2023, the Practice and Procedure Committee of the Constitutional Bench, chaired by Justice Aminuddin Khan, held a meeting and issued minutes of the proceedings. The meeting was attended by committee members Justice Jamal Khan Mandokhel, Justice Muhammad Ali Mazhar, and the Supreme Court’s Registrar.

The minutes outlined that under Article 186A, the Supreme Court of Pakistan has the authority to transfer any case to a constitutional bench for hearing. Such cases would typically involve clear constitutional or legal questions or those filed under Article 199. The committee further decided that all cases referred to the constitutional bench will be marked with distinct green-colored identification tags on the files, clearly labeled as “Constitutional Bench.” This color coding will also be used in the Supreme Court’s IT department for categorizing constitutional cases.

For decisions issued by the constitutional bench, the words “Constitutional Bench” will be added to all order sheets and case titles. Additionally, at least seven paper copies of each case will be prepared and submitted for hearing. Until the rules for the constitutional bench are finalized, requests for urgent hearings will be considered by the Practice and Procedure Committee.

The committee has instructed the Registrar’s office to categorize all pending cases within a week. For cases not yet scheduled for hearing, particularly those flagged by the Registrar’s office, the committee has decided that at least five chamber appeals will be heard daily.

Another key decision made during the meeting was the establishment of a dedicated department or branch to handle constitutional cases. This branch will be staffed appropriately to ensure the smooth processing and hearing of these cases. Cases referred to the constitutional bench will be heard according to the roster approved during committee meetings.

Lastly, the committee directed the Registrar to work with Justice Muhammad Ali Mazhar in drafting the procedural rules for the constitutional bench, which will be presented for approval in an upcoming meeting.