ISLAMABAD: Justice Munib Akhtar expressed inability to sit on the bench constituted for the hearing of review petitions against the Supreme Court ruling on Article 63A of the Constitution.
A five-judge bench, headed by Chief Justice Qazi Faez Isa and comprising Justice Munib Akhtar, Justice Amin ud Din Khan, Justice Jamal Khan Mandokhel and Justice Mazhar Alam Khan Miankhel, was constituted for hearing of the review petition, and a cause-list in that regard was issued for Monday. However, when the bench assembled, Justice Munib was absent.
Taking exception to it, CJP Faez said that a five-judge bench, headed by Chief Justice Umar Ata Bandial, and comprising Justice Ijaz ul Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhel on May 17, 2022, rendered opinion on the reference, filed by ex-President Arif Alvi. He noted that the decision was by majority of 3 to 2.
The majority held that the vote of any member of a Parliamentary Party in a House that is cast contrary to any direction in terms of para (b) of clause (1) of Article 63A cannot be counted and must be disregarded.
Justice Mazhar and Justice Mandokhel, who dissented, wrote separate note. They rendered opinion that Article 63A of the Constitution is a complete code in itself, which provides a comprehensive procedure regarding defection of a member of the Parliament and consequences thereof.
Justice Faez said since Justice Bandial has retired and Justice Ahsan resigned; therefore, he and Justice Amin ud Din Khan included in the bench for hearing of review petition. He further said transparency demands that judges who hear the petition in the first instance sit in the bench constituted for hearing of its review.
He told that today (September 30) SC Registrar received a letter written by Justice Munib. However, the chief justice read its conclusion, which said; “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 (Constitutional Review Petition).”
It emphasised; “that this is not a recusal and my present inability should not be misconstrued or misrepresented as such. Please ensure that this note is placed on the file of the CRP so as to become part of its record.”
However, the chief justice declined to make it part of case file, and stated; “It has been practice that when the Court is convened the judges sit, and if any judge wants to say something then he can say it there.” Justice Faez further said they would rise now and request Justice Munib to join the bench. He hoped that Justice Munib would consider their request.
“The court will reconvene tomorrow (Tuesday) at 11:30 a.m., and if he (Justice Munib) does not want to sit in the bench then he will be replaced by another available judge.”
The written order issued late in the evening said; “Today Justice Munib Akhtar, headed Bench No III and conducted cases, and we were together in the Judges tea room. 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.”
The chief justice stated that the review has been pending for the last two years, adding it affects not only good governance, but the credibility of the Courts. CJP Faez said once the bench is constituted then the proceedings are held in the open court. He said the recusal is recorded in the open court.
Additional Attorney General Aamir Rehman supported the chief justice stance on recusal of a judge, saying Justice Munib should sit in the bench, and clarify his position in the courtroom. He informed that the incumbent AGP Usman Mansoor Awan earlier had represented the Supreme Court Bar Association as its counsel; therefore, he would argue the review petitions himself.
Barrister Ali Zafar made submissions that Committee under the Act 2023 comprises on three members for constitution of benches and fixing of cases. He said two members cannot decide about the cases and benches.
The chief justice remarked if one member does not like to sit then it does not mean the Supreme Court will be standstill. He said no one can force a judge (a member) to sit in the committee meeting. “One member can’t determine the fate of entire Committee.”
Zafar argued that the committee should have been constituted as per the Act and three members should sit in and decide about the benches and fix the cases. The chief justice questioned whether the law envisage such? He said if a judge does not attend Committee’s meeting for some reason then it would not become dysfunctional. He said; “We (judges) are paid to hear and decide cases, while lawyers get paid to represent the litigants before the Courts.”
Justice Jamal Khan Mandokhel questioned whether the President has a power to issue Ordinance, and if does then whether the Ordinance to amend the SC (Practice & Procedure) Act 2023 so far has been suspended? He added if it has not been done then they (judges) have to follow the law.
Upon the Court’s query, Barrister Zafar told that he was representing former Chairman of Pakistan Tehreek-e-Insaf (PTI) Imran Khan. The chief justice then inquired whether he has filed Power of Attorney on behalf of Imran Khan.
Zafar replied that the jail authorities have not allowed him to get Imran’s signature on Power of Attorney. However, the bench accepted his application.
The case is adjourned until today (Tuesday).
Justice Munib also wrote in his letter that the senior puisne judge through a note dated 23-09-24 has raised a number of important constitutional questions and issues with regard to the Ordinance, both procedural and substantive. “The Chief Justice has responded to this note by his letter dated 25-09-24. 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 Munib raised objection on the inclusion of Justice Mazhar Alam in the bench. He stated; “Justice (retd) Mazhar Alam, who currently attends sittings of the Court as an ad hoc judge in terms of Article 182. The reasons why it was considered necessary to so request Justice Mazhar (and another retired judge] are set out in the minutes of the meeting of the JCP held on 19-07-2024. … His inclusion in the bench to hear the CRP appears to be contrary to Article 182.”
Copyright Business Recorder, 2024
Comments
Comments are closed.