Amid reports of rifts among the top judiciary, Justice Munib Akhtar on Monday skipped a hearing on a petition seeking a review of the 2022 verdict on the defection clause under Article 63A of the Constitution.

The review plea, filed by the Supreme Court Bar Association (SCBA), was set to be taken up by a five-member larger bench at 11:30am today.

Headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa, the bench was supposed to comprise Justices Akhtar, Aminuddin Khan, Jamal Khan Mandokhail and Mazhar Alam Khan Miankhel.

Justice Akhtar’s decision comes against the backdrop of his removal from the three-judge committee established under the Supreme Court (Practice and Procedure) Act 2023 after the promulgation of an amendment ordinance granting the CJP authority to select any judge as the committee’s third member.

In a letter, Justice Mansoor Ali Shah, a member of the three-judge committee, had announced boycotting the panel over “unfettered and arbitrary discretion” vested in CJP’s role, while protesting Justice Akhtar’s removal.

In response to Justice Shah, CJP Isa listed several reasons for Justice Akhtar’s removal from the committee, including his alleged indifference to a piling backlog of cases.

Today, all judges except Justice Akhtar appeared in the courtroom.

It then transpired that the judge had written a letter to the SC registrar. While the letter has not been made public yet, the chief justice read out parts of it during the hearing.

CJP Isa said he would attempt to convince Justice Akhtar to remain part of the bench and adjourned the hearing till 11:30am tomorrow.

The hearing

At the outset of the hearing, CJP Isa noted that the May 17, 2022 verdict had been pronounced by a five-member bench.

Reading out his fellow judge’s letter, CJP Isa quoted Justice Akhtar as saying that he “could not be part of the bench formed by the committee”.

However, at the same time, Justice Akhtar, according to the CJP, clarified that he was “not recusing from being a part of the bench” and that it should not be misconstrued as that.

The chief justice further quoted the judge as requesting for his letter to be made a part of the record for the review case. “There is no custom to make such a letter part of the court records. Justice Munib’s letter cannot be made a part of the court file,” the top judge observed.

Justice Isa remarked, “It would have been better if Justice Munib Akhtar had voiced his opinion before the committee. I have always encouraged differing views.”

Noting that the review petition had been pending for more than two years, the chief justice termed the case of Article 63-A as “very important”.

“Justice Munib Akhtar’s opinion is respected,” the CJP said, highlighting that once a bench had been formed, a judge could recuse from the case only when in the courtroom.

After reading out the letter, CJP Isa said, ’We will request Justice Munib right now that he sits among the bench [judges].

“The law requires that the review appeal should be heard by the original bench. I fulfilled the place of the former chief justice and Justice Aminuddin was included to substitute Justice Ijazul Ahsan.”

The chief justice said he would ask the judge to be a part of the bench as the review petition ought to be heard by a five-member bench as per the original case.

At one point, PTI’s Barrister Ali Zafar came to the rostrum and expressed his reservations on the bench-forming committee. “The committee can only form benches when all three members are present,” he said.

The top judge noted that Justice Akhtar had taken up other cases today and was also present in the TV Room. “Him not being a part of the hearing was his choice.”

Expressing hope that Justice Akhtar would be convinced to hear the case, Justice Isa said the hearing was being adjourned till tomorrow.

In case Justice Akhtar did not agree to hear the case, the bench would be reconstituted, the top judge said. He further announced that the hearing would resume tomorrow whether or not the judge agreed to remain part of the bench.

During the hearing, the additional attorney general also requested that the bench take up the case on Tuesday.

Subsequently, the hearing was adjourned till 11:30am tomorrow.