Justice Afghan becomes part of five-member bench following Justice Munib’s “unavailability”]
A larger bench of the Supreme Court on Tuesday resumed hearing the review petition against the apex court’s May 2022 verdict on Article 63-A of the Constitution wherein it declared that the dissident members of a parliamentary party cannot cast votes against their party’s directives.
The plea, filed by the Supreme Court Bar Association (SCBA), is being heard by a newly formed five-member bench led by Chief Justice Qazi Faez Isa along with Justice Amin-ud-Din Khan, Justice Jamal Khan Mandokhail, Justice Mazhar Alam Khan Miankhel and Justice Naeem Akhtar Afghan.The new bench has been constituted after Justice Munib Akhtar, on Monday, expressed unavailability from being part of the bench — the reasons for which the latter communicated to the apex court’s registrar in multiple letters.
A day earlier, CJP Isa had adjourned the hearing due to Justice Munib’s absence and said that Justice Munib would be requested to rejoin the bench, which otherwise, would be reconstituted.
Justice Munib’s letters
Elaborating on the reasons behind his unavailability from yesterday’s hearing, Justice Munib has said that he did not recuse from the bench, saying he cannot be a part of a bench that was constituted by the Practice and Procedure Committee — the three-member judges’ committee of the apex court which decides on the formation of the SC benches and cases related to human rights.
It is to be noted that following the promulgation of the Supreme Court (Practice and Procedure) Amendment Ordinance 2024, Justice Munib was replaced with Justice Amin-Ud-Din Khan by CJP Isa.
The judge, in his letter, noted that the “matter of fixing a bench for the CRP appeared suddenly on the committee’s agenda at its 17th meeting held on July 18, it seems for the first time even though the committee has been meeting since before July 17.”
“Even though no bench was constituted, the Chief Justice (in minority) had proposed a five-member bench, to be headed by the senior puisne Judge. That proposal has now been abandoned and the Chief Justice has himself assumed command of the CRP, for reasons that are not unknown,” he wrote.
“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 reasons why it was considered necessary to so request Justice Miankhel (and another retired Judge) are set out in the minutes of the meeting of the JCP held on 19.07.2024,” the judge added.
Seeking his letter to be made part of the case, Justice Munib said that his unavailability from the bench should not be considered as a recusal and pointed out that Justice Mazhar’s — who was part of the bench that gave the May 2022 ruling and had in fact dissented with majority judgement — inclusion in the five-member bench hearing the case that it was contrary to Art 182 of the Constitution.
