ISLAMABAD: The Supreme Court has adjourned hearing in the petitions filed against the 26th Constitutional Amendment for today (Wednesday).
An eight-member Constitutional Bench of the Supreme Court, headed by Justice Aminuddin Khan, heard the petitions filed against the 26th Constitutional amendment. Other members of the bench were Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Ayesha A Malik, Justice Syed Hassan Azhar Rizvi, Justice Musarrat 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.
During the hearing, Justice Aminuddin, while responding to an argument by a petitioner’s lawyer regarding the government’s role in the formation of constitutional benches, remarked one should look at their patience when they are constantly listening to lies.
Shabbir Raza Rizvi, counsel for the petitioners, while continuing his arguments submitted that although certain powers have been given to the new Constitutional Bench, the Supreme Court’s powers have not been taken away. To this, Justice Musarrat responded that the Constitution has been amended. According to that, a Constitutional Bench has been established.
“Are you suggesting we should first suspend the 26th Amendment; and how will you bypass Article 191-A of the Constitution,” she asked the counsel. Rizvi responded that Article 191-A should be read in conjunction with other constitutional provisions and asserted that Article 191-A does not eliminate the Supreme Court’s authority under Article 184(3).
Justice Mazhar questioned whether the counsel was claiming that Article 184(3) is exempt from Article 191-A. He noted that Article 191-A clearly states that the powers under Article 184(3) have been transferred to the Constitutional Bench.
Justice Aminuddin observed that the question is not about the bench’s powers, but rather about how judges not part of the Constitutional Bench could be included in it. The counsel for the petitioners submitted that the court simultaneously holds two roles — as the Supreme Court and as the constitutional bench.
Justice Mazhar likened the regular bench and the Constitutional Bench to two branches of the same tree, noting that no one is saying the Constitutional Bench is above or below the Supreme Court. Justice Mandokhail observed that the counsel might be implying that constitutional matters should be heard by the Full Court rather than by a bench.
“Are you suggesting that not the bench, but only the Full Court can hear constitutional matters and the full court can sit with all judges and can hear constitutional cases,” Justice Mandokhail asked the counsel. “You are the Supreme Court, that’s why you can refer the matter for constituting a Full Court,” Rizvi responded. “To whom we could refer,” Justice Mazhar asked him. “You know better,” he replied.
The counsel contended that the current Constitutional Bench should come out from Judicial Commission and Article 191 and consider itself as the Supreme Court and resolve this issue. “When the president can send a reference to the chief justice and the chief justice then constitutes a bench for hearing that reference, then you can also send the matter of Full Court to chief justice as well,” Rizvi told the bench.
Meanwhile, after his arguments were concluded, another petitioner’s lawyer, Dr Adnan Khan, presented his arguments about the formation of the Full Court. He submitted that it has been repeatedly mentioned that the Full Court is distinct from benches — that while benches are formed, the Full Court already exists as a permanent body. He argued that benches are part of the Full Court, but the Full Court itself is a separate and permanent entity.
Justice Mandokhail asked the counsel whether he meant that the Full Court already exists and that matters simply need to be referred to it. Dr Adnan replied in the affirmative. He further claimed that his opposing party had a dominant role in the formation of the Constitutional Bench.
At this point, Justice Aminuddin remarked: “Let’s talk about that today as well — this issue keeps coming up,” adding, “Look at our patience; we are sitting here constantly listening to lies.” “Tell us, what dominant role they have in the formation of benches,” he asked the counsel.
The counsel clarified that he had no objection to any judge on the current bench but argued that they had no role in the formation of constitutional benches. “Let the collective wisdom of the Supreme Court examine the collective wisdom of parliament,” Dr Adnan Khan concluded. Later, the court adjourned the hearing for today (Wednesday) at 11:30 am.