Justice Munib Akhtar on Monday refused to attend a hearing on a review petition of the 2022 verdict on the defection clause under Article 63A of the Constitution, citing questions over the legitimacy of the judges’ committee formed after the promulgation of an ordinance.
Filed by the Supreme Court Bar Association (SCBA), the review petition was set to be considered by a five-member larger bench—comprising Chief Justice of Pakistan (CJP) Qazi Faez Isa and Justices Akhtar, Amuniddin Khan, Jamal Khan Mandokhail, Mazhar Alam Khan Miankhel—at 11:30 a.m. over two years after it was filed.
However, only four judges showed up for the hearing, with Akhtar explaining his absence in a letter that he requested to be made part of the official proceedings. Rejecting this, the CJP observed only remarks uttered in open court could be made a part of the record. He then said the court would strive to convince Justice Akhtar to attend proceedings from tomorrow (Tuesday), adding that if he refused to do so, the judges’ committee would form a new bench to hear the case.
“Justice Munib Akhtar’s opinion is respected,” he remarked, adding a judge could only recuse themselves from a bench in the courtroom. “The law requires that a 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,” he said, referring to the makeup of the larger bench.
He also noted that Justice Akhtar had taken up other cases today and was present in the court’s TV room. “Him not being a part of the hearing was his choice,” he remarked and hoped the judge would change his mind.
During the proceedings, PTI’s Ali Zafar came to the rostrum and voiced his reservations on the bench-forming committee. “The committee can only form benches when all three members are present,” he argued. He further argued that a full court bench should hear this review.
Subsequently, the hearing was adjourned until 11:30 a.m. tomorrow.
While parts of the letter penned by Justice Akhtar were read out by the CJP in court, its entire contents only became public after the adjournment on Monday afternoon.
In his letter, Justice Akhar noted a committee constituted under the ordinance that amended the Supreme Court (Practice and Procedure) Act, 2023, had formed the larger bench on Sept. 23. He said senior puisne Justice Mansoor Ali Shah had raised various “important constitutional questions and issues” regarding the ordinance. “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,” he said, referring to the CJP’s response to Justice Shah. “It is unfortunate that the chief justice has chosen to indulge himself in this manner, while the constitutional issues raised go unanswered,” he added.
Justice Akhtar recalled the review petition had come before the judges’ committee on July 18 when no bench was constituted despite the CJP proposing a five-member larger bench headed by Justice Shah. “That proposal has now been abandoned and the chief justice has himself assumed command of the [petition], for reasons that are not known,” he added.
Justice Akhtar also expressed displeasure at the inclusion of Justice (retd.) Miankhel on the bench, as he is currently an ad hoc judge. However, he noted that the judge was originally on the bench that decided the case, but described his presence as an ad hoc judges as “happenstance,” adding this inclusion appeared in violation of Article 182. Under Article 182, any appointed ad hoc judge has the “same power and jurisdiction as a judge of the Supreme Court.”
The judge concluded his letter by stressing he was not recusing from the bench and his “inability” to sit on the bench should not be misconstrued as such.