SC judges embroiled in open spat

ISLAMABAD: The Supreme Court (SC) on Monday adjourned the review petition against its judgment on the defection clause under Article 63-A of the Constitution after Justice Munib Akhtar questioned the legality of the formation of the bench, expressing his inability to be part of it.

Chief Justice Qazi Faez Isa had constituted a five-member larger bench to be headed by him and comprising Justice Munib Akhtar, Justice Amin-ud-Din Khan, Justice Jamal Khan Mandokhail and Justice Mazhar Alam Khan Miankhel for hearing the review petition of Supreme Court Bar Association against the judgment of the apex court delivered on May 17, 2022 on the defection clause under Article 63A of the Constitution.

On Monday, Justice Munib Akhtar, however, was not available on the bench and Chief Justice Qazi Faez Isa said that majority judgment was authored by Munib Akhtar and concurred by Umar Ata Bandial, CJ and Ijaz ul Ahsan.

The Chief Justice said that the judges in the minority, Mazhar Alam Khan Miankhel and Jamal Khan Mandokhail, wrote their separate dissenting judgments/Opinion. The Supreme Court Bar Association of Pakistan (‘SCBA’) filed Civil Review Petition No 197/2022 on 23 June 2022.

During the hearing, Ch Aamir Rehman, learned Additional Attorney-General for Pakistan said that Mansoor Usman Awan, ASC who was then representing the SCBA is now the Attorney-General for Pakistan, therefore, he will represent the Federation of Pakistan. The incumbent and the then Presidents of the SCBA present in courtroom also confirmed the same.

Advocate Syed Ali Zafar told the court that he had sent his power of attorney to be engaged as counsel of Imran Ahmed Khan of Pakistan Tehreek-e-Insaf who had filed CP No 9 of 2022 but the same has not been received back and he may be permitted to represent the said petitioner. The court allowed him to do so.

Chief Justice Qazi Faez Isa said that Justice Munib Akhtar, has addressed a letter to the Registrar of the Supreme Court of Pakistan dated 30 September 2024, a copy whereof as per his direction has been placed on record.

The CJP said that Justice Munib Akhtar, concluded his letter by stating ‘I must express my inability, at the present time, to be part of the bench constituted to hear the CRP adding that this is not a recusal and my present inability should not be misconstrued or misinterpreted as such.’

“However, today Munib Akhtar headed bench No III and conducted cases, and we were together in the Judges tea room”, the CJP noted down in the court order. Therefore, we direct the Registrar to place before his lordship the instant order with the request to his lordship 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”, says the court order.

During the hearing, Chief Justice observed that “Transparency demands that all the three judges who were part of that judgment should be on the present bench hearing review petition.

The chief Justice said that they would request Justice Munib Akhtar to join the bench for deciding the review petition which is an important matter.

“Recusals are recorded in court and once the bench is constituted, proceedings has to be held on the matter which is before the court”, the CJP said adding that it would have been appropriate had Justice Munib given his opinion after being part of the bench.

The Chief Justice said that they will request Justice Munib and hope that he would join the bench. “We will try to persuade him to join us and if the judge does not agree then the bench will be reconstituted”, the CJP added.

Additional Attorney General Aamir Rehman told the court that efforts should be made to persuade Justice Munib Akhtar. Barrister Ali Zafar present in the court informed that he is representing PTI founding Chairman Imran Khan. He while expressing his reservations about the formation of the bench hearing the review petition submitted that until and unless there members of the Committee constituted under the Supreme Court (Practice and Procedure) Act, 2023, recently amended not attend the said Committee, bench cannot be constituted for hearing any matter.

He suggested the court the solution to address the issue saying that when the Committee did not constitute the bench as per law, a full court should be convened to address the issue. Justice Jamal Khan Mandokhel while addressing Ali Zafar said that promulgating ordinances is the constitutional obligation of the President adding that unless and until, an ordinance is not suspended or set aside, it is regarded as legal.

“Then why we should not accept the Supreme Court (Practice and Procedure) Act amendment Ordinance 2024”, Justice Mandokhel asked Ali Zafar. To which the learned counsel for PTI submitted that he did not mean that.

The Chief Justice asked the learned counsel as his client was party in the main case hence the court will hear him also in the review petition. Later, the court adjourned the hearing until today (Tuesday) at 11:30 am.

On May 17, 2022, a five-member bench of the apex court headed by former Chief Justice Umer Ata Bandial and comprising Justice Ijazul Ahsen, Justice Muneeb Akhtar, Justice Jamal Khan Mandokhel and Justice Mazhar Alam Khan Miankhel had announced the decision on the Presidential Reference seeking interpretation of Article 63-A of the Constitution.

The court by a majority of 3-2 while deciding the Presidential Reference held that any member against the will of any party could cast his vote in favor of another party and his vote would not be counted besides the matter would be sent to Parliament pertaining to determination of disqualification of the said dissident party member.

The judgment was authored by Justice Muneeb Akhtar. Later on, Supreme Court Bar Association (SCBA) had filed a review petition against the judgment, contending that that the framers of the Constitution intended to disregard defecting votes to be a stop-gap arrangement for ensuring stability during the Constitution’s first decade.

Meanwhile, in his letter, addressed to Registrar of the Supreme Court, Justice Munib Akhtar questioned the formation of the bench for hearing the review petition regarding Article 63-A saying the matter has to be considered taking into account the overall circumstances pertaining to the particular bench formed by the reconstituted committee.

“On such assessment I must express my inability, at the present time, to be part of the bench constituted to hear the CRP”, Justice Munib wrote. It may be noted that this is not a recusal and my present inability should not be misconstrued or misrepresented as such”, Justice Munib Akhtar intimated and sought assurance that his name not is placed on the file of the CRP so as to become part of its record.

Justice Munib referred to CRP 197/2022 (Supreme Court Bar Association of Pakistan v Federation of Pakistan and others) (“CRP”) which is fixed for hearing today before a five-member Bench.

Justice Munib Akhtar said that that bench was formed on 23.09.2024 by the committee under s. 2(1) of Act XVII of 2023, as reconstituted in terms of the subsection as substituted by amending Ordinance VIII of 2024 (“Ordinance”).

“By his note dated 23.09.2024 the senior puisne Judge has raised a number of important constitutional questions and issues with regard to the Ordinance, both procedural and substantive”, the senior judge wrote adding that the Chief Justice has responded to this note by his letter dated 25.09.2024.

“Rather than engaging with the serious concerns expressed the letter is regrettably little more than, in part, a smear campaign and in part an exercise in self-adulation. It is unfortunate that the Chief Justice has chosen to indulge himself in this manner, while the constitutional issues raised go unanswered”, Justice Akhtar wrote.

“I may note that the matter of fixing a bench for the CRP appeared suddenly on the committee’s agenda at its 17th meeting held on 18.07.2024, it seems for the first time even though the committee has been meeting since before 17.10.2023”, the senior judge said adding that even though no bench was constituted, the Chief Justice (in minority) had proposed a five-member bench, to be headed by the senior puisne Judge.

The senior judge maintained that proposal has now been abandoned and the Chief Justice has himself assumed command of the CRP, for reasons that are not unknown. Similarly, the senior judge also raised questions over the inclusion of Justice Mazhar Alam Khan Miankhel in the bench.

“I may also note that the bench now constituted includes Justice (R) Mazhar Alam Miankhel, who currently attends sittings of the Court as an ad hoc judge in terms of Article 182”, Justice Munib Akhtar wrote adding that the reasons why it was considered necessary to request Justice Miankhel (and another retired Judge) are set out in the minutes of the meeting of the JCP held on 19.07.2024.

“Within the framework so provided, the committee (via exchange of messages on its WhatsApp group on 27- 28.07.2024) established the parameters for the work to be assigned to the ad hoc Judges”, the judge wrote adding that it is true that Justice Mazhar was a member of the bench that gave the judgment (by majority) that is now under review in the CRP.

However, in the present context, his presence at the Court is a happenstance”, Justice Akhtar maintained adding that it is commonplace for review petitions to be heard after the judges who gave the judgment sought to be reviewed have retired.

Therefore, the senior judge said that with respect, his inclusion in the bench to hear the CRP appears to be contrary to Article 182. Meanwhile, senior puisne judge of the Supreme Court Justice Munib Akhtar has questioned the legitimacy of the four-member bench that heard on Monday, the review petition against its judgment on the defection clause of Article 63-A of the Constitution.

In another letter addressed to Registrar Supreme Court after the court adjourned the review petition for today (Tuesday) Justice Munib Akhtar said that the Monday’s hearing was not according to law and rules while the order passed by the bench has no legal standing as well.

“I must nonetheless regretfully, though respectfully, record my protest as to what has been done 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”, Justice Munib wrote.

“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”, the senior judge further wrote.

“I am in receipt, through my SPS at around 3:00 pm today, of the following note from you”, Justice Munib Akhtar wrote adding that the instant review petition was fixed today before a five-member Bench, which included him.

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”, the senior judge intimated to Registrar of the apex court.

The judge said that his is at a loss to understand as to how the five-member Bench constituted in terms as set out in his earlier note sent to you today could be “converted” into a four-Member bench”.

The judge further said that at the end of the purported order there is space for five signatures, and that where he would have signed is (obviously) blank that further confirms that the CRP was to be heard by a five-member bench.

“Therefore, prima facie, and until and unless some further information or record becomes available to me, I must regretfully conclude that what you have sent to me in terms of para 2 of your note is not, and cannot in law be, a judicial order”, Justice Munib wrote

The judge further said that four Judges could not have sat and heard the matter that was listed before a 5-member Bench adding that 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 and I have all the respect for the four Judges who sat in Court and purported to conduct the hearing in the CRP”, Justice Munib Akhtar concluded.