Article 63-A review: Justice Munib protests over hearing by SC bench in his absence

Justice Munib Akhtar, who refused to be part of the five-member bench hearing a review petition challenging the Supreme Court's verdict on defection clause (Article 63-A), expressed his dissent over the proceedings conducted by the chief justice-led four judges bench in his absence.

"Four judges could not have sat and heard the matter that was listed before a 5-member Bench," Justice Munib stated in his second letter to the top court's registrar on Monday.

It is noteworthy to mention here that the originally formed five-member bench, headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa, had comprised Justice Amin-Ud-Din Khan, Justice Jamal Khan Mandokhail, Justice Mazhar Alam, and Justice Munib.

The jurist's second letter came after the top court adjourned the hearing on the review petition after Justice Munib did not attend yesterday's hearing for which he wrote a letter to the SC registrar, stating that he did not recuse from the bench, however, he cannot be a part of a bench that was constituted by Practice and Procedure Committee.

However, as the hearing began, Justice Munib was unavailable from the bench, following which the CJP adjourned the hearing till today (Tuesday), saying that the judge would be requested to rejoin the bench.

In his previous letter, Justice Munib also demanded to make his letter a part of the case record, to which CJP Isa said this could not happen. He added that it would have been appropriate had Justice Munib given his opinion after being part of the bench.

Justice Munib, in his fresh correspondence to the top court, stated: "What appears to have happened prima facie seems to be a complete departure from all precedent, and applicable law and rules. Respectfully, it is not acceptable to me. I have all the respect for the four judges who sat in court and purported to conduct the hearing in the CRP [Civil Review Petition]."

Commenting on a receipt he received today from the larger bench after the hearing, he wrote: "It is submitted that the Civil Review Petition No. 197 of 2022 came up for hearing before Larger Bench headed by the Hon'ble Chief Justice of Pakistan today i.e. 30.09.2024 and the Hon'ble Court while adjourning the matter for tomorrow, has been pleased to direct the Registrar to place the order passed today before Hon'ble Justice Munib Akhtar with the request to join the Bench."

However, if his lordship does not do so the Committee constituted under section 2 of the Supreme Court (Practice and Procedure) Act, 2023 is required to appoint another judge in his place on the bench, it added.

"If approved, the instant note along with certified copy of order may be forwarded to Sr. P.S. to the Hon'ble Judge."

Justice Munib said, "That purported order clearly shows that the matter was, as listed, to be fixed before the five-member Bench. However, I did not participate in today's hearing and it appears that four learned Judges, i.e. the Chief Justice, Justice Amin-ud- Din Khan, Justice Jamal Khan Mandokhail and Justice Mazhar Alam Khan Miankhel sat in Court and conducted the hearing of the CRP."

"I am at a loss to understand as to how the five-member Bench constituted in terms as set out in my earlier note sent to you today could be 'converted' into a four Member Bench".

"At the end of the purported order there is space for five signatures, and that where I would have signed is (obviously) blank," he argued, adding: "This further confirms that the CRP was to be heard by a five-member bench."

Raising objections to the CJP Isa-led bench's order, Justice Munib said that the directive could not be called a “judicial order”.

"I must nonetheless regretfully, though respectfully, record my protest as to what has been done," he wrote.

"Therefore, the direction contained in para 4 of the purported order (which prima facie is in law no order at all) is of no consequence."

"Nonetheless I show respect to the four judges and respond to their query. In the circumstances, I believe that the only response that I can give, in the available facts and circumstances, is to once again draw attention to my earlier note of today addressed to the registrar," he concluded.

CJP summons SC key panel's session

Following Justice Munib's dissenting letter on the bench hearing Article 63A's review petition, CJP Isa summoned a session of the top court's Practice and Procedure Committee on Tuesday (today) at 9:00am, sources told Geo News.

It is important to mention here that a three-member committee formed under the SC Practice and Procedure Amendment Ordinance has constituted nine larger benches to hear review petitions pending since 2018.

The committee had also issued a judges' roster in the said benches for the hearings of the cases.