• SC judge wonders how matter being heard by five-member bench can be taken up by four judges
• Body meets today to reconstitute bench for SCBA plea in defection clause case

ISLAMABAD: Justice Munib Akhtar on Monday put his fellow judges in a bind by refusing to sit on a larger bench of the Supreme Court, and later protested the hearing conducted by a four-judge bench rather than the five judges who had initially heard an SCBA plea, seeking a review of the May 17, 2022 ruling on the defection clause under Article 63A.

At the same time, Justice Akhtar explained that his inability to sit on the bench should not be construed as a recusal from the bench.

The situation left Chief Justice of Pakistan Qazi Faez Isa with no option but to call a meeting of the three-judge committee, constituted under the Supreme Court (Practice and Procedure) Ordinance, on Tuesday, after Justice Akhtar, through another letter on the same day, recorded his protest against the top judge’s orders.

The SC judge described Monday’s court order as “no order in law and therefore of no consequence”, in which the registrar was ordered to place the same before Justice Akhtar with the request to join the bench. If he does not do so, the committee will appoint another judge on the bench, the order noted.

Justice Akhtar said he was at a loss to understand how the five-judge bench could be “converted” into a four-member bench. At the end of the day’s purported order, there was space for five signatures, he noted, adding that the place where he would put his signature was blank. This further confirms that the review petition was to be heard by the five-member bench, Justice Akhtar said.

Four judges could not have sat and heard the matter that was listed before a five-member bench, he said.

“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 review petition,” Justice Akhtar said.

Monday’s hearing

Earlier, the CJP, who headed the five-judge bench, had postponed the hearing to Tuesday (today) after Justice Akhtar refused to sit on the bench. He said, “we will again request Justice Akhtar to reconsider his decision since he was available in the court today”.

However, the CJP observed, in case he chose to stick to his stance, the three-judge committee would reconstitute the bench.

The larger bench comprises the CJP, Justice Akhtar, Justice Amin-ud-Din Khan, Justice Jamal Khan Mandokhail and Justice Mazhar Alam Khan Miankhel.

However, four judges assembled in Courtroom No.1, with the CJP stating that on Monday, a letter written by Justice Akhtar to the SC registrar had been received.

He read out the letter’s concluding paragraph, in which Justice Akhtar stated, “…that taking into account the overall circumstances pertaining to the particular bench formed by the reconstituted committee (under the amending ordinance), he must express his inability, at the present time, to be part of the bench constituted to hear the review petition”.

Justice Akhtar requested that his note be placed on the petition’s file to become part of its record. However, the CJP rejected the request on the grounds that recusal was recorded in the open court and not by writing a letter to the registrar.

“The three-judge committee cannot force a judge to sit, but recusals are always recorded in the open court, particularly when he is the author judge in the presidential reference on the interpretation of Article 63A of the Constitution,” the CJP observed.

Additional Attorney General Chaudhry Aamir Rehman said every effort should be made to ensure Justice Akhtar rejoins the bench, while SCBA President Shahzad Shaukat said the bench should be reconvened.

Senior counsel Syed Ali Zafar expressed concern over the constitution of bench, saying the committee should consist of three senior-most judges. Describing the situation as an impasse, he called for full court which should hear the matter instead of the present five judges.

The CJP disagreed with the notion of an impasse and observed, “We cannot put everything at a standstill.” Justice Mandokhail observed that the president had every right to promulgate an ordinance and if the same was in the field, the judges had to follow it.

In his first letter, Justice Akhtar questioned the presence of ad hoc judge, Justice Miankhel, in the bench, saying his inclusion appears to be contrary to Article 182.

The letter recalled that CJP (while in minority on the three-member committee) had proposed a five-member bench, to be headed by senior puisne judge Justice Syed Mansoor Ali Shah to hear the present case. That proposal has now been abandoned and CJP has himself assumed the command of the review petition.

Published in Dawn, October 1st, 2024