SC review hits controversy at outset

The review of the Supreme Court judgment in a case pertaining to the interpretation of Article 63-A of the Constitution hit controversy at the outset when it came up for hearing by a five-judge bench led by Chief Justice Qazi Faez Isa on Monday.

The civil review petition (CRP) filed by the Supreme Court Bar Association of Pakistan (SCBA) was fixed before the bench, which also included Justice Munib Akhtar, Justice Aminuddin Khan, Justice Jamal Khan Mandokhail and Justice Mazhar Alam Khan Miankhel.

However, Justice Munib Akhtar declined to sit on the bench. He wrote a letter to the registrar in which he expressed his "inability, at the present time, to be part of the bench". He added that it was not a recusal and his "present inability should not be misconstrued or misrepresented as such".

Justice Akhtar also said in his letter that the five-member bench was formed on September 23 by the judges committee, regarding which senior puisne judge Justice Mansoor Ali Shah had raised a number of important constitutional questions and issues.

"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," the letter stated. "With respect, his inclusion in the bench to hear the CRP appears to be contrary to Article 182."

When the hearing started at around noon time, four judges came to the courtroom instead of five. Chief Justice Isa told the court that the letter written by Justice Akhtar had been received, adding that currently, the judge was not part of the bench.

The chief justice further said that Justice Akhtar had requested that his letter be made part of the judicial proceedings of the review case. However, he added that once a bench was constituted, such a letter could not be made a part of the court proceedings.

Chief Justice Isa said that no judge could be compelled to sit on a bench. He also said that the judges committee would review the matter and Justice Akhtar would be asked to join the bench. If the judge did not join the bench then another judge would be included, he added.

The additional attorney general said that an effort should be made to make Justice Akhtar a part of the bench. The SCBA president also expressed the desire that Justice Akhtar become part of the bench and hear the review petition.

Barrister Ali Zafar, representing the Pakistan Tehreek-e-Insaf (PTI) founder, objected to the formation of the bench and said that according to the law, three judges had to sit in the judges committee for the bench formation. He argued that two judges on the committee could not constitute a bench.

When the composition of the committee was not complete, Zafar said, the full court should look into the matter. The chief justice asked the lawyer where in the law the full court had been mentioned. Zafar replied that the full court was the only solution in a crisis situation.

The chief justice said that this was an important constitutional matter and keeping in view the requirements of transparency, Justice Akhtar was made a part of the bench. He added that if Justice Akhtar did not agree, a new bench would hear the matter on Tuesday (today).

A written order, issued later, stated that Justice Akhtar addressed a letter to the registrar, stating, "I must express my inability, at the present time, to be part of the bench … It may be noted that this is not a recusal and my present inability should not be misconstrued or misinterpreted as such."

"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."

In response to the written order, Justice Akhtar addressed another letter to the registrar. Justice Akhtar stated that he received the written order of the hearing. "I must regretfully conclude that what you have sent to me … is not, and cannot in law be, a judicial order," he said.

He also said that he was part of the bench but did not sit on it. However, the remaining four judges conducted the hearing. "I am at a loss to understand as to how the five-member Bench … could be 'converted' into a four-member bench," he added.

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

The SCBA had filed the petition on June 23, 2022 for review of a 3-2 majority judgment authored by Justice Munib Akhtar and concurred by the then chief justice Bandial and justice Ahsan. Justice Mazhar Alam Miankhel and Justice Mandokhail Jamal had written their separate dissenting notes.