Following the recusal of Justice Syed Mansoor Ali Shah, the Supreme Court’s committee, operating under the Supreme Court Practice and Procedure Act 2023, has constituted nine new larger benches to hear various cases, including a review petition against the interpretation of Article 63A of the Constitution.
After Justice Shah’s recusal, a two-member committee meeting was held on September 23, led by Chief Justice Qazi Faez Isa and including Justice Aminuddin Khan.
According to the minutes of the committee, out of the nine larger benches, only the hearing for the Supreme Court Bar Association (SCBA) review petition regarding the Article 63A judgment has been scheduled.
A five-judge larger bench led by Chief Justice Isa is set to hear the matter on September 30.
The minutes indicate that CP No. 2/2022, along with Reference No. 1/2022, was previously heard by a bench comprising Umar Ata Bandial, Chief Justice (as he then was), Justice Ijazul Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar, and Justice Jamal Khan Mandokhail, with a decision rendered on May 17, 2022.
A review of the said judgment has been sought through CRP No. 197/2022.
According to the minutes of the committee, the review petition has been pending for over two years and four months. Therefore, it should be fixed immediately before the available judges of the said bench.
At the relevant time, Justice Mazhar Alam Khan Miankhel was the senior-most among them. Justice Mazhar Alam Khan Miankhel is now an ad hoc judge, which the Constitution states ‘shall have the same power and jurisdiction as a judge of the Supreme Court,’ as stipulated in Article 182.
The minutes add that therefore, a bench should be constituted comprising Chief Justice of Pakistan (CJP) Qazi Faez Isa, Justice Munib Akhtar, Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, and Justice Mazhar Alam Khan Miankhel. The case is to be fixed for Monday, September 30, 2024.
Interestingly, the minutes do not disclose why CJP Isa changed his mind regarding the composition of the larger bench in this review matter.
During the committee meeting held on July 18, CJP Isa noted that the case had been heard by five judges and decided by a majority of 3 to 2.
Justice Munib Akhtar from the majority and Justice Jamal Khan Mandokhail from the minority remain, whereas the then CJ and another judge have since retired, and another has resigned.
CJP Isa had previously indicated that since two judges were available, the case should be fixed for hearing within ten days before a bench that would include Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, and Justice Aminuddin Khan.
Now, CJP Isa has replaced himself with Justice Shah, who will preside over the larger bench.
This case holds significant weight in the current context, as the federal government lacks the numbers needed to secure a two-thirds majority for passing a constitutional amendment.
The government is already feeling disheartened after its first attempt at a constitutional amendment failed.
Currently, the government is hopeful that the judgment on the interpretation of Article 63A of the Constitution will be overturned, allowing votes from defecting lawmakers to be counted in favour of the constitutional amendment.
The government’s strategy is heavily dependent on Justice Isa, who has faced consistent criticism from PTI leaders over allegations of bias.
All eyes are on Justice Munib Akhtar, as observers wonder whether he will recuse himself from the bench and what reasons he will provide for such a decision.
Legal experts question why the review petition was not fixed before the July 12 order. To avoid further controversy, they suggest it would be prudent for the matter to be scheduled for a hearing after October 25.
