Courts can’t be barred from hearing cases: Justice Mandokhail

ISLAMABAD: Justice Jamal Khan Mandokhail Wednesday remarked that the higher courts cannot be barred from hearing cases even through a constitutional amendment by parliament.

“Suppose through an amendment, the powers of the entire Supreme Court are taken away, then who will hear the petitions against it? The same Supreme Court will hear it; even if the powers are taken away, it will still hear it,” he said during the hearing of petitions challenging the 26th Constitutional Amendment.

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 Hasan Azhar Rizvi, Justice Musarrat Hilali, Justice Naeem Akhtar Afghan and Justice Shahid Bilal Hassan.

Khwaja Ahmed Hussain, counsel for the petitioner Afrasiab Khattak, while commencing his arguments, contended that the current Constitutional Bench was not competent to hear scores of petitions challenging the validity of the 26th amendment. He requested the bench to issue an order for placing the petitions before the Full Court for hearing.

Justice Mandokhail asked the counsel whether he was saying that he does not have confidence in the bench. “If we cannot hear the case, how can we order it to be placed before a Full Court?” he questioned.

Hussain submitted that the credibility of the apex court does not depend on the 26th amendment, adding that the case should be heard by another independent bench.

Justice Mandokhail inquired whether he has no confidence in this bench, to which the counsel replied that the decision on 191A should be made by the original Full Court, adding that he is not saying that the bench is not independent.

“You are the one who said the case should go before another independent bench,” Justice Mandokhail told the counsel and questioned whether they will also be part of that independent bench.

At the same time, Justice Aminuddin asked if the chief justice would be part of that independent bench. Hussain replied that the chief justice will definitely be part of that bench.

Justice Mandokhail inquired, “If we cannot hear the case, how can we issue the order?”

The counsel, however, asked why the court is asking for a path for the order, adding that so far, the Federation has not objected to the Full Court or the issuance of the order.

Justice Aminuddin remarked that every lawyer has his own stance, adding that they are asking questions after reading the Constitution.

Justice Mandokhail reminded that some lawyers had even suggested setting the amendment aside. Justice Mazhar asked if 16 judges come, will it become a regular bench.

“Yes, absolutely, it will not remain a Constitutional Bench,” Hussain replied.

Justice Mandokhail remarked that on Tuesday, Dr Adnan, counsel for one of the petitioners, also said that the Supreme Court is one thing, and the (constitutional) bench is another. “You tell us since when has the concept of benches existed,” Justice Mandokhail asked the counsel.

The counsel, in return, asked why the bench was looking for the way for passing an order for constituting a Full Court.

During the hearing, Justice Ayesha asked the counsel to read Article 191A(1) along with 191A(3). “This article says that the Judicial Commission will nominate judges for the Constitutional Bench of the Supreme Court, and no bench other than the Constitutional Bench can hear constitutional matters,” Justice Ayesha added. She remarked that there is no restriction in these articles; these are procedural articles, adding that these place restrictions on benches, but not on the Supreme Court. “We are reading these articles as if they place a complete restriction,” she continued and questioned where the restriction is.

“Can we interpret them to mean that the Full Court can hear the matter?” she further questioned.

Similarly, Justice Mazhar asked the counsel that he initially said a 16-member Full Court would not remain a Constitutional Bench; it would be a regular bench. “I completely agree with your arguments,” he told the counsel.

Hussain maintained that if you say your hands are tied, that is not the case, adding that nowhere it is written that a Constitutional Bench cannot refer a matter to the Full Court.

“So, we cannot send this case to any regular bench, but we can send it to the Full Court?” Justice Mandokhail asked the counsel. “Then it becomes a regular bench, as they had said the 16-member bench would be regular,” Justice Mazhar remarked.

“Your powers have not been taken away from you,” Hussain said, adding that if tomorrow, in the 27th Amendment, parliament decides that an executive officer will sit above the Supreme Court, will you not be able to look at that decision. “You absolutely will be able to,” the counsel continued, adding that the bench is asking to be shown the way while I am saying the way exists.

The counsel was of the opinion that the procedure for passing this amendment was not even followed. Justice Mazhar, however, remarked that the attorney general could be asked that question while arguing on the merits.

Justice Shahid remarked that the counsel was seeking the main relief through this application.

Hussain replied that his application does not request declaring the 26th Constitutional Amendment void but had requested for fixing the matter before the Full Court.

Justice Mandokhail asked the counsel that suppose through an amendment, the powers of the entire Supreme Court are taken away, then who will hear it; the same Supreme Court will hear it.

Even if the powers are taken away, the same court will hear it, Justice Mandokhail continued, adding that there have been discussions that since the Constitutional Bench is a result of the 26th Constitutional Amendment, it cannot hear the case.

Hussain replied that this bench is a part of the Supreme Court, but the Supreme Court exists in its own right. He contended that there is no restriction that you cannot refer the matter to the Full Court. “I am not asking you to make the final decision; just refer the matter to the Full Court as you have the power to issue an order; therefore, do not underestimate this power,” the counsel contended.

Meanwhile, after Hussain concluded his arguments, the court adjourned the hearing for today (Thursday).