ISLAMABAD: Supreme Court judge Justice Jamal Khan Mandokhail on Monday remarked that had the 26th Constitutional Amendment not been made, Justice Yahya Afridi would not have become Chief Justice of Pakistan (CJP) as the senior-most judge (Justice Syed Mansoor Ali Shah) was supposed to become chief justice.
An eight-member Constitutional Bench headed by Justice Aminuddin Khan heard 36 identical petitions through live telecast, challenging the validity of the 26th Constitutional Amendment. Other members of the bench were Justice Mandokhail, Justice Muhammad Ali Mazhar, Justice Ayesha A Malik, Justice Syed Hassan Azhar Rizvi, Justice Musarat Hilali, Justice Naeem Akhtar Afghan and Justice Shahid Bilal Hassan.
Around three dozen petitioners including Pakistan Tehreek-e-Insaf (PTI), Jamaat-e-Islami (JI), Sunni Ittehad Council (SIC), Lahore High Court Bar Association, Lahore Bar Association, Karachi Bar Association as well as former seven presidents of Supreme Court Bar Association (SCBA) and various individuals in personal capacity had challenged the validity of the 26th Constitutional Amendment.
Continuing his arguments, Abid S Zuberi, counsel for seven former SCBA presidents, stressed the need for constituting a full court for hearing the petitions, saying, being an important case, it is necessary to have a collective wisdom of the judges. Justice Ayesha asked the counsel what his plea was.
Zuberi replied that a full court comprising judges before the 26th Constitutional Amendment should hear the present petitions. Justice Mazhar, however, observed that the judges the counsel wants to include in the full court are indeed judges, but they are not judges of the Constitutional Bench.
“There is a restriction in Article 191A whereby constitutional matters will only be heard by the Constitutional Bench,” Justice Mazhar said, adding that whether the counsel for likes it or not, Article 191A exists. Justice Mazhar further observed that the term full court is not mentioned in Article 191A.
Referring to the counsel’s argument that the matter should be sent to the chief justice so he can form a full court, he further pointed out that under Article 191A, the chief justice no longer has that authority.
Justice Mandokhail observed that there is a difference between a full court and a Bench. He asked Zuberi to clarify the difference between the two and further asked as to where did the concept of benches come from.
Zuberi responded that a full court will consist of the judges who are available. “If you claim there is no authority, then how have full court would be formed in the past,” Zuberi questioned. The counsel contended that the chief justice cannot refuse; orders are taken from the chief justice.
The counsel contended that a judicial order can be passed for the formation of a full court, adding that after a judicial order, the Chief Justice cannot say that a Full Court cannot be formed.
Justice Musarrat observed that an objection is being raised that the chief justice and the current Constitutional Bench are a result of the 26th Constitutional Amendment.
“Can the Constitutional Bench order the formation of a full bench,” she asked the counsel. Zuberi replied that the Constitutional Bench will pass a judicial order, adding that the formation of benches is an administrative order.
He further submitted that the chief justice is no longer the master of the roster. Justice Mandokhail observed that they are sitting as a Constitutional Bench formed under Article 191A and asked the counsel if they can direct the chief justice to include specific judges and exclude others from the bench.
Zuberi responded that the Constitutional Bench has the authority to issue directions for the formation of a full court. Justice Jamal Mandokhail inquired, “Why do you want this?” To which Zuberi replied, “Because we have challenged the 26th constitutional amendment itself.”
Justice Mandokhail asked, “What will happen to the chief justice? Will he not sit on this bench?” The counsel said, “The chief justice will have to decide for himself whether to sit on the bench or not.”
During the hearing, Justice Jamal Mandokhail remarked, “Justice Yahya Afridi became chief justice under the 26th Constitutional Amendment. If the 26th Constitutional Amendment had not been made, he would not have become chief justice at this time because there was a fixed term. The senior-most judge (Justice Syed Mansoor Ali Shah) was supposed to become chief justice but could not.” He raised the question, “If we are beneficiaries, can we sit on the bench?”
Upon this, Justice Mazhar inquired, “Then who will hear the case?” The counsel said, “I did not say that you are beneficiaries of the 26th Constitutional Amendment.”
Justice Mandokhail said, “So, are you saying that if eight judges sit and decide the case, it will be wrong? Whether the eight of us sit or a full court sits, the issue remains the same, doesn’t it?” He raised the question, “Do you think that by sitting in the current Constitutional Bench, the eight judges will become biased?” He said, “If there is an objection to the very amendment under which the constitutional bench was formed, then who will decide it? No one mentioned specific judges; they only talk about a full court.”
The counsel said, “If a full court sits, there is collective wisdom.” Justice Aminuddin asked if a Constitutional Bench has a regular case before it, can they hear it. Zuberi replied that a Constitutional Bench cannot hear a regular case, adding that it must refer it to a regular bench.
“You are saying that a Constitutional Bench can hear a case but should not,” asked Jsurice Mandokhail. “No, I am saying that the 26th Constitutional Amendment is an important case and such an amendment has never been successfully challenged before,” Zuberi replied.
Justice Ayesha asked the counsel if he is requesting a full court, is there any restriction on forming one, adding that full courts have been formed several times in the past, for example, in the Practice and Procedure case, full court was formed. “Whether you want a full court consisting only of judges appointed before the 26th Constitutional Amendment,” Justice Ayesha asked Abid Zuberi.
Justice Mandokhail observed that the Prime minister and cabinet make up the government while the chief justice and judges make up the Supreme Court. “You say you want a full court but are limiting it, why not ask for a full court of all 24 judges,” Justice Mandokhail asked the counsel, adding that the counsel cannot specify which judges should be part of the full court.
Zuberi, however, replied that he is not saying that judges should be excluded from the Supreme Court. Justice Mandokhail then asked the counsel as to if the Judicial Commission declares that all Supreme Court judges are Constitutional Bench judges, will he accept that. Zuberi replied in affirmative. Meanwhile, the court adjourned the hearing for today (Tuesday).