The cracks in the superior judiciary deepened further on Thursday as Chief Justice of Pakistan Qazi Faez Isa sought to address a brewing controversy over the three-member bench fixing committee of the Supreme Court, following its amendment through a Presidential ordinance last week, by listing an apparent 11-point charge sheet against a fellow judge even as he responded to the accusations levelled against him by a senior colleague.
Chief Justice Qazi Faez Isa responded on Wednesday to an earlier letter written by Justice Mansoor Ali Shah, where the senior puisne objected to the amendments made by the government to the Practice and Procedure Act 2023, through an ordinance. Justice Shah also took exception to CJP Isa's decision to immediately act upon the amended law and summon a meeting of the bench fixing committee after altering its composition where he included the fifth senior-most judge of the Supreme Court on the committee by replacing the third senior-most judge Justice Munib Akhtar. In his letter, Justice Shah informed the committee's secretary and the top judge that he would not participate in the committee's meeting until Justice Akhtar is restored as its member.
Read Justice Mansoor Ali Shah's letter to the Supreme Court Registrar
In his four-page letter, which was dated September 25 but did not emerge on the public scene until Thursday, Chief Justice Isa explained that he was responding to Justice Shahs' letter because it was addressed to the 'Secretary to the committee (the Registrar) and was copied to all the judges of the Supreme Court while journalists had obtained a copy of the letter before CJP Isa and Justice Ameenuddin Khan had a chance to view it during the committee's meeting boycotted by Justice Shah.
Moreover, he expressed that since he had always advocated accountability and transparency, he shall explain his reasons for removing Justice Akhtar.
"Let it be remembered that this I do because of your insistence, lest someone takes umbrage," he said, adding that he was dispatching the letter to the Registrar and all the judges of the top court to "dispel the false narrative."
Charges against Justice Munib Akhtar
Addressing specific issues with Justice Akhtar, which led to the decision to remove him from the bench fixing committee, CJP Isa listed 11 specific problems.
CJP Isa's lsit of issues with Justice Akthar began with the latter's opposition to the Practice And Procedure Act 2023.
"Justice Munib Akhtar, who you unstintingly support, opposed the Act," CJP Isa noted, adding, "During the hearing, the vigorous defence of the chief justice's absolute discretionary powers by Justice Akhtar must also be acknowledged."
The top judge, however, quickly clarified that by pointing out Justice Akhtar's arguments against the act do not insinuate that "Justice Akhtar or other distinguished colleagues (in the minority) did so because they were on the trajectory to become Chief Justices of Pakistan, nor question Mazahar Ali Akbar Naqvi, who was removed by the Supreme Judicial Council, having found him guilty of misconduct."
Noting that the chief justice's power to fix benches was misused by his predecessors, particularly in matters involving constitutional interpretation, the CJP noted, "Tailoring benches by my distinguished predecessors and invariably including Justice Ijazul Ahsan and Justice Akhtar in such cases raised the question whether their lordships' wisdom was superior to that of their seniors."
Highlighting the depth of Justice Akhtar's opposition to the act, CJP Isa said: "Before the act even became law (and when it was still in the form of a Bill) (former) chief justice Umar Ata Bandial, assisted by Justice Akhtar and other distinguished judges, on April 13, 2023, intervened to preserve the power of the chief justice, and, having done so, did not decide the case; it was the first case I decided as Chief Justice."
Further, CJP Isa noted that Justice Akhtar was one of two judges who had availed of the full period of summer vacations, displaying an alleged "indifferent to the piling backlog of cases."
"While on vacations and not available to do court work, he insisted on participating in the [bench fixing] committee meetings, suggesting his lack of trust in the next senior judge (Justice Yahya Afridi)," CJP Isa said.
The top judge further argued that under the Practice and Procedure Act, urgent cases were to be fixed within 14 days but this statutory provision and the constitutional right to seek a review was "negated by his refusal to hear urgent constitutional cases while he was vacationing."
A chunk of Chief Justice Isa's complaints against Justice Akhtar pertained to his treatment of the ad hoc judges appointed to help manage the top court's immense caseload.
He accused Justice Akhtar of disrespecting his seniors (the ad hoc judges), and selecting 1,100 specific cases and confining the ad hoc judges to hear only those cases. This, CJP Isa stated, was "something wholly unprecedented."
"Not allowing ad hoc judges to be part of the Shariat Appellate Bench of the Supreme Court to hear the long pending cases," CJP Isa contended. He added that Justice Akhtar allegedly stated that the "other ad hoc judge must do 'chamber work' till his distinguished colleague returned from leave on account of a bereavement in his family."
CJP Isa complained that Justice Akhtar had allegedly displayed "rude and unreasonable behaviour towards a distinguished member of the [Judicial] Committee also comprising of all the chief justices, senior puisne judges, distinguished members of the bar, and walking out of the meeting."
Towards the end, CJP Isa's complaints against Justice Akhtar pertained to his handling of cases.
"The bench headed by him adjourns most cases and often finishes its work before 11am; a concern expressed by his companion judges," he said, adding that Justice Akhtar also allegedly issues stay orders in respect of matters wherein reference is made to him, as in the audio-leaks case.
"While quick in granting injunctive relief in important constitutional cases, but then not hearing and deciding them, including the two cases mentioned above," he said.
Questioning the questioning of the top judge
Even though he asserted his belief in accountability and transparency, on multiple occasions, CJP Isa sought to ask Justice Shah how he could question the top judge's authority.
"Shah sahib, the law empowers me to nominate any Judge of the Supreme Court on the Committee and I have exercised my discretion for the stated cogent reasons," he said.
"Legally, you also cannot question who I may nominate as the third member of the Committee," he asserted.
CJP Isa stated that the Ordinance retained the three-member committee; the chief justice and the senior-most judge remain its members. "However, the law now permits the chief justice to nominate the third member from amongst the judges of the Supreme Court."
"Shah sahib, you question my changing the third member of the committee and give me an ultimatum that until Justice Akhtar is again included in the committee, you will not participate in its meetings. With respect, what you demand is contrary to the law."
CJP Isa respons to Justice Shah's accusations
Referring to Justice Shah as "Shah sahib", CJP Isa also retorted to some allegations that were levelled against him by the senior puisne judge.
"Without ascertaining the facts, you allege that I had bypassed Justice Yahya Afridi in the choice of the third member," CJP Isa said, claiming that if anyone did not want Justice Afridi on the committee, it was Justice Akhtar.
Explaining further, CJP Isa said that when the committee was scheduled to meet on Friday, September 20, 2024, he had reached out to Justice Afridi (the next senior judge) but learnt that he was not available.
"Therefore, I requested Justice Aminud Din Khan who was kind enough to cancel going to Lahore."
CJP Isa said that later, Justice Shah had conveyed to the Registrar - but not the top judge or his office - that he had another commitment and would be unavailable for the meeting that day.
"The meeting was adjourned due to your non-availability," he said, adding, "But, two days afterwards, you decided not to participate at all unless I give in to your ultimatums."
"Yesterday (Tuesday), in front of you, I asked Justice Afridi, and he said that he did not want to be on the committee," he continued.
"Another absurd allegation levelled against me is that of 'cherry-picking and undemocratic display of one-man-show'," CJP Isa said, adding that the "tiresome clichés do not controvert facts."
He later listed as an achievement that he "stopped the earlier - cherry-picking - by the chief justice/chairman in nominating junior judges by disregarding their seniors.
CJP Isa said that he had no desire to list what he had achieved during his term, but "to stem a false narrative, which has been taken into in the public domain, you compel me to do so."
He proceeded to list 25 points, including accusations that past chief justices had surrounded themselves with a "clique and effectively took over the Supreme Court."
This clique, he argued, "headed most Supreme Court committees." Moreover, full court meetings were not held for years; positions lay vacant while the unauthorised practice by some former Chief Justices of approving the cause list of cases and inserting and removing cases from it was immediately stopped.
CJP Isa listed off his achievements of constituting full courts to hear important constitutional cases, deciding key cases, including those pertaining to the holding of general elections and then overseeing the conduct of the polls, starting live streaming of cases, issuing quarterly reports of cases resolved and publishing cause lists, curtailing summer vacations, proposed amending Judicial Commission of Pakistan Rules 2010, filling vacancies in the top court and the Federal Shariat Appellate Bench among others.
"When all this is achieved, your comment that the country is in the midst of a 'constitutional crises' perturbs me. It is also inappropriate for a judge to say something which undermines political, economic, and financial stability. What purpose, if I may ask, is served by this comment?"
With regard to the lack of collegiality displayed by Justice Shah, CJP Isa noted that the senior puisne judge had endorsed his collegiality, but on his part, he could not walk a few steps to the chief justice's chamber to share his thoughts. "And instead gave ultimatums."
"However, you do not seem to consider our other distinguished colleagues equal to the task," CJP Isa said, suggesting that Justice Shah felt only Justice Akhtar should be included in the committee while other judges were not qualified enough.
"Being your senior in age and having 42 years of experience of the law I may be permitted to advise that expressing an opinion on the amending Ordinance, as you do, and circulating your letter amongst colleagues, in respect of a matter which may come to be adjudicated by the Supreme Court was inappropriate."
CJP Isa urged Justice Shah to consider the matter objectively and would rejoin the committee and serve the people through his contribution to ensure the smooth functioning of the Supreme Court.
"Let each and every one of us play our part in the early disposal of accumulated cases."