ISLAMABAD: A five-member bench of the Supreme Court hearing a review petition against its judgment on the defection clause of Article 63A of the Constitution Wednesday faced an embarrassing situation when a retired CDA officer, claiming to be pleading the PTI case, threatened that over 500 lawyers were picketing the court and they would see how it handed down a decision against them. During the hearing, Mustafain Kazmi, a retired CDA officer, came to the rostrum and claimed that he was pleading the PTI’s case. The chief justice instructed him to sit down but he refused. At this, the chief justice warned that if he did not obey the court orders, then the police would be called in to take him out. At this, Kazmi threatened, “Over 500 lawyers are picketing outside the court and they will see how you issue a decision against them.” He said the five-member larger bench was unconstitutional, as Justice Naeem Akhtar was not a part of it. At this, the chief justice directed the police to take him out of the courtroom.
Meanwhile, the apex court rejected the PTI counsel’s objection to the constitution of a bench to hear a review petition against its judgment on the defection clause of Article 63A of the Constitution. A five-member larger bench of the court — headed by Chief Justice Qazi Faez Isa — heard the review petitions. Justice Aminuddin Khan, Justice Jamal Khan Mandokhel, Justice Naeem Akhtar Afghan and Justice Mazhar Alam Khan Miankhel were the other members of the bench.
Raising objections, Barrister Ali Zafar, counsel for the PTI founder chairman Imran Khan, contended that the bench had not been constituted in accordance with the ordinance that amended the Supreme Court (Practice and Procedure) Act 2023. He submitted that a full court should be convened and to determine on the administrative side, the constitutional validity of the ordinance that had amended the Supreme Court (Practice and Procedure) Act 2023.
“Is this a legal preposition as you are now embarrassing the judges,” the CJP told Ali Zafar. The chief justice said a law came and he abided by it and asked Ali Zafar if a full court could annul the law. “You can,” Ali Zafar replied and submitted that under Article 191 of the Constitution, the court was empowered to frame rules and resolve the matter once and for all.
The chief justice, however, said what his fellow judges (Justice Syed Mansoor Ali Shah and Justice Muneeb Akhtar) wrote was not in accordance with the scope of the Constitution and the law. “Should I stop sitting in any meeting tomorrow?” the CJP asked adding that parties could not choose judges themselves and such a practice was disastrous.
“Whether the benches formed in the past were on the basis of seniority?” the CJP further asked Zafar. “We have also heard the case against former dictator Pervez Musharraf,” the CJP said, adding, “But in this court, the decisions have been cancelled by the registrar.” “I have no problem with the full court, but the people are used to arbitrary benches here. But those days are gone. Now transparency has come to the Supreme Court. Now there will be no more dictatorship in the country or in the institutions,” the CJP remarked. He said Justice Munib Akhtar was included in the review petition bench and after his refusal, Justice Mansoor was asked to be a part of the bench. “Do we have the power to forcibly arrest someone and bring them to the bench?” the CJP asked Zafar.
Justice Jamal Khan Mandokhel remarked that he was a part of the bench in the case under Article 63A of the Constitution. “Can I refuse now to sit on the revision bench and will it not be a violation of the oath to do so?” Justice Mandokhel questioned.
The chief justice then asked Ali Zafar to argue on the case merits to which he said first his plea regarding the objection should be decided and then he could proceed.
Meanwhile, the chief justice consulted his fellow judges and then unanimously held that the objections raised by the counsel were not sustainable.
Ali Zafar then sought time to seek instructions from his client. After accepting his plea, the court asked Additional Attorney General Aamir Rehman to arrange Ali Zafar’s meeting with Imran Khan and adjourned the hearing for today (Thursday) at 11:30am.
Earlier, President Supreme Court Bar Association Shahzad Shaukat came to the rostrum and said he wanted to argue. The chief justice told him that his arguments had been completed.
Shaukat took the stand that there was a delay in filing the revision petition as they had to wait for the detailed decision. He said the short one had already arrived but the detailed decision was awaited. Justice Mandokhel said had it been the case of an ordinary citizen, it would have been a different matter.
“Does the Supreme Court Bar also not know that the revision petition is filed within a period of time,” Justice Mandokhel asked. The SCBA counsel said the delay in filing the revision petition in the public interest cases could be ignored and such cases could also be scheduled for hearing early.
After the police spirited Kazmi out of the court, the chief justice asked Barrister Ali Zafar, “What is going on? You come and insult us? We will not tolerate this at all.” Ali Zafar replied that he was giving arguments very comfortably and ‘you were also listening comfortably’, to which the chief justice said this method of misbehaving with judges had become common adding now the YouTubers will start propaganda outside the courtroom.
Ali Zafar said he was not responsible for what had happened in the court. However, the chief justice insisted that he was responsible for the situation.
Zafar submitted that in the case related to the Supreme Court (Practice and Procedure) Act, the very court had given a decision, on which the chief justice said, “Your party had opposed this Act.” Ali Zafar said the court decision was very important.
“Tomorrow, if your party passes such a law, can you say that you do not like it?” the CJP asked Ali Zafar. The chief justice said, “It was not a matter of likes and dislikes of the judges. At that time, the law was suspended but despite that I had consulted with two senior judges as chief justice.”
The CJP said the amended ordinance had not been challenged and they were currently hearing the review petitions against the decision of the ongoing case regarding the interpretation of Article 63A of the Constitution. Ali Zafar said he was not talking about the legality of the ordinance but his arguments were that this bench had not been constituted in accordance with the Supreme Court (Practice and Procedure) Act Amendment Ordinance adding that as per law, a 3-member committee will sit and constitute the bench.
There will be a majority of opinions, there is no scope in this law to form a bench by just two members of the committee, he said, adding that a committee member, Justice Mansoor Ali Shah, had not come to the committee and had written a letter to the registrar.
“I want to read it,” Ali Zafar said but the chief justice asked him to read only the relevant paragraph. “If you want to read that letter, then you have to read the reply too,” he remarked.
“You want to embarrass the judges here,” the CJP said to which Ali Zafar replied that Justice Mansoor Ali Shah had talked about the full court session regarding the Supreme Court (Practice and Procedure) Act Amendment Ordinance 2024 adding, “I had also referred to you when you were a senior judge and you were also on chamber work.”
The chief justice replied that there was transparency in his actions adding that what his fellow judges (Justice Syed Mansoor Ali Shah and Justice Muneeb Akhtar) wrote was not within the scope of the Constitution and the law. Ali Zafar said Justice Muneeb was not a part of the bench on September 30; hence, in his absence, the bench should not have been constituted.
He said the 4-member bench that heard the case on September 30 had not been formed by anyone, on which the chief justice said that the parties could not choose judges themselves in such a style. The CJP said that this process was disastrous and asked whether the benches in the past were constituted on the basis of seniority. He further asked Ali Zafar whether he had ever tried for transparency on behalf of the bar association. Later, the court adjourned the hearing for Thursday (today).