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A Judge’s Temporary Unavailability does not Amount to Disqualification from Future Proceedings --- Supreme Court of Pakistan

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A Judge’s Temporary Unavailability does not Amount to Disqualification from Future Proceedings --- Supreme Court of Pakistan

Islamabad 07-10-2024: The Supreme Court of Pakistan, in a significant development, addressed procedural issues regarding judicial recusal and the constitution of Benches under the newly enacted Supreme Court (Practice and Procedure) Act, 2023, while hearing Civil Review Petition No. 197 of 2022. The petition, filed by the Supreme Court Bar Association of Pakistan (SCBA), sought a review of the majority decision in Constitution Petition No. 2 of 2022.

The case, presided over by Mr. Chief Justice Qazi Faez Isa and four other Justices, dealt primarily with procedural matters, setting important precedents on judicial conduct and the scope of review jurisdiction.

The judgment noted that Mr. Justice Munib Akhtar, who authored the majority opinion in the original case, expressed his temporary inability to participate in the review proceedings through a formal letter to the Registrar of the Supreme Court. Mr. Justice Munib Akhtar clarified that his absence should not be considered a formal recusal, highlighting that a judge’s temporary unavailability does not amount to disqualification from future proceedings.

Under Section 2 of the Supreme Court (Practice and Procedure) Act, 2023, a Committee is empowered to appoint another Judge in case a member of the Bench is unable to join. The Bench, in its order, directed that if Mr. Justice Munib Akhtar remains unavailable, the Committee would be required to appoint an alternative Judge to complete the Bench, ensuring procedural compliance under the Act.

The Chief Justice also noted a significant development regarding representation. Mr. Mansoor Usman Awan, who previously represented the SCBA in the original petition, has since been appointed as the Attorney-General for Pakistan. This change in representation led to procedural adjustments as Mr. Awan would now represent the Federation of Pakistan instead of the petitioner.

The Court permitted Syed Ali Zafar to represent former Prime Minister Imran Khan in the review petition, despite minor procedural gaps in the formal acknowledgment of his representation. This move was seen as an affirmation of the Court’s stance on prioritizing effective representation over procedural technicalities.

The Bench adjourned the hearing to October 1, 2024, and directed the Registrar to convey the order to Mr. Justice Munib Akhtar for his reconsideration. In case Mr. Justice Munib Akhtar decides not to join, the Committee under the 2023 Act will be invoked to appoint another Judge.