Relationship between judges at lowest ebb

Legal experts urge judiciary not to be confrontational

ISLAMABAD:

Chief Justice of Pakistan Qazi Faez Isa may well have listed his own achievements and raised questions over the conduct of Justice Munib Akhtar, but he did not respond to Justice Syed Mansoor Shah's demand of holding a full court meeting to consider amendments to the Supreme Court Practice and Procedure Act 2023.

CJP Isa is known for writing letters during his predecessors' tenures on different issues and this practice continued after he took charge as top judge of the apex court. However, his writings and dissenting notes have seemingly created more controversies than his judgements.

In his recent letter to Justice Syed Mansoor Ali Shah, he raised 11 questions on the conduct of Justice Munib Akhtar. The relationship between Justice Akhtar and CJP Isa has not been the best since the hearing of the latter's review petition in the presidential reference case. In fact, harsh words were exchanged between them during the hearing of that matter.

Justice Munib Akhtar was among the minority judges who had dismissed CJP Isa's review petition. He was nominated by ex CJP Mian Saqib Nisar whose relationship with incumbent CJP Isa wa strained during the former's tenure.

Justice Munib Akhtar was also associated with ex CJP Umar Ata Bandial whose relationship with CJP Isa was less than cordial.

It is worth recalling that Justice Munib Akhtar – known for using the term 'master of roster' for the CJP to form benches according to his opinion – was part of several special/larger benches during the tenure of ex-CJP Umar Ata Bandial.

He was one of the minority judges who withheld the approval for the Supreme Court Practice and Procedure Act 2023.

Despite strong opposition from powerful circles, Justice Munib Akhtar stood firm on his stance to conduct elections for the Punjab and Khyber-Pakhtunkhwa (K-P) assemblies within 90 days. He was also a member of the larger bench that declared trials of civilians in military courts unconstitutional and faced criticism for his ruling on the interpretation of Article 63-A of the Constitution.

Initially, Justice Munib Akhtar never objected on the formation of larger benches in high profile cases. Even he did not demand the constitution of a full court to hear the matter of six Islamabad High Court judges' letter to the Supreme Judicial Council on interference of agencies in judicial functions.

It was reported that the first time Justice Munib Akhtar dissented was over the constitution of a full court hearing on the reserved seats case. Later, he also dissented on a larger bench to hear the Punjab election tribunals case. The situation in the committee, however, reached its lowest ebb after the July 12 order in the reserved seats case.

CJP Isa wanted early hearing of the PML-N review petition against the July 12 verdict, but the majority of judges did not endorse his view. He was also in minority over the early fixing of the Arshad Sharif murder case. Likewise, despite the CJP's wishes, he was unable to fix the review petition against the interpretation of Article 63-A of the Constitution.

In the backdrop of these developments, CJP Isa gave 11 reasons as to why he excluded Justice Munib Akhtar from the committee. CJP Isa complained over Justice Munib's behavior toward two adhoc judges as he was not in favour of their appointment to the SC.

He urged that instead of hearing bail matters and appeals against acquittals, retired judges should hear 1,100 specific cases which required lengthy reading.

Lawyers believe the situation may further aggravate if Justice Munib responds to CJP Isa's questions raised over his conduct.

Both sides should show restraint, experts suggested, and avoid displaying their differences in full public view.

CJP Isa listed 25 achievements during his tenure. However, the January 13 order and six IHC judges' letter will determine his legacy as he did not utter a word in both cases. CJP Isa is given much credit for holding a full court meeting on the very first day of his tenure. However, rules are yet to approve about live streaming from a full court.

Lawyer Advocate Abdul Moiz Jaferii says that the letter, written in response by the CJP to Justice Shah, which has leaked to the press, is truly bizarre.

"The chief avoids answering the central question posed by Justice Shah: why act on the ordinance with such haste when it disturbs the balance between the parliament and Supreme Court, created by the full court judgement rendered by the chief justice himself in the practice and procedure act 2023 challenge"

Jaferii further states that the chief also avoids addressing the principal demand of Justice Shah: that a full court be called to determine the legitimacy of such an ordinance at this time.

"Instead, we are afforded a list of allegations against Justice Munib Akhtar, which are all irrelevant to his position on the originally constituted committee. By making these allegations, the CJP has strengthened the critique that he was in favour of such an ordinance because it allowed him to evade the need to create a consensus with those that disagreed with him," he said.

He added that amongst the irrelevant reasons given is that Justice Munib had been in the minority, which supported the concept of master of the roster when the full court heard the challenge.

"Is the CJP mentioning this now as a critique or to show that Justice Munib should now support the new ordinance because it does effectively make the top judge the master of the roster again? If it's a critique, then the CJP is actually holding a judicial opinion against a judge. An opinion which the parliament has veered towards by concentrating more power to the CJP." The barrister stated that if the CJP is offering this comment as an assumption that Justice Munib should now be okay with the concentration of power via the ordinance, he is accepting that the new ordinance does in fact take away from democratic decision making in the Supreme Court and renders Justice Isa the token master of the roster, whilst actually giving that power to the executive and parliament."

Jaferii said that the commentary on ad hoc judges is once again misplaced as Justice Munib's position is that these judges should be appointed for particular tasks and that they cannot function as regular Supreme Court judges is in line with the Constitution.

"The seniority of such judges is rendered moot upon retirement and they are to be treated as the junior-most members of the court, so the CJP's insistence on his misbehaviour with people who were his seniors is decidedly referring to the past tense.

He stated that the comment on Justice Munib's conduct in the judicial commission meeting, being one of the reasons to exclude him, is the most shocking. "Justice Munib had demanded that the government explain and shed light upon the constitutional amendment it had claimed it was bringing which caused the judicial commission to delay its rulemaking in May 2024.

"He wanted the government to report on its progress in that regard, so that the validity of such a delay caused by the government to the rulemaking process could be determined," he adds.

"The law minister was absent from the meeting and the attorney general evaded answering the question. The very next day, the government attempted to table and pass the constitutional amendment without bringing its contents to light. Their actions vindicated justice Munib's protest." He stated that the CJP has, instead of choosing to note the attempt at subverting our constitution, focused instead on the protest of Justice Munib as some egregious act.

"The CJP has cherry picked the questions he wants to answer. What he has left unanswered is the most important query: why act on an ordinance which cannot explain its own urgency and which disturbs the rationale of allowing Parliament to regulate the SC's practice and procedure as offered by the CJP himself," Jaferii concluded.