Islamabad:
After eight months, the Committee of Constitutional Benches of the Supreme Court decided Tuesday to resolve approximately two dozen petitions against the 26th constitutional amendment for hearing before a constitutional bench of eight members (CB) on October 7.
The CB of eight members includes judge Amicin Khan, judge Jamal Khan Mandokhail, judge Muhammad Ali Mazahar, judge Ayesha Malik, judge Hasan Azhar Rizvi, judge Musarat Hilali, judge Naeem Akhtar Afghan and judge Shahid Bilal Hassan.
The case was heard for the last time on January 27 by the same bench. During a brief hearing, the bench issued opinions to respondents and the material was postponed for three weeks. However, the case has not been able to hear at hearing since then.
The petitioners also asked the bench to resolve the case in full court. The CB also issued opinions to respondents on this plea. It is likely that the petitioners can again request the hearing bench by the full court.
But the situation has changed since January 27, while the Pakistan Judicial Commission (JCP) approved the appointment of eight new judges before the Supreme Court. The appointment of new judges came to the agenda of the JCP shortly after the hearing of calls.
Currently, 15 judges of the Supreme Court are selected for the constitutional benches by the JCP. The judges who are not in good books from the executive have not been appointed for the constitutional benches.
Likewise, the executive has so far reached several objectives after the 26th amendment. Since October of last year, the executive has had a dominant role in the appointment of judges of the higher courts. Despite this, the chief judge Yahya Afridi is helpless.
Despite his strong desire, he could not obtain the appointment of judge Miangul Hasan Aurangzeb approving D for the appointment as chief judge of the High Court of Islamabad (IHC). The same goes for the appointment of judges before the high lessons because of the big word of saying the executive.
There is a big link between Pakistan Bar Council and the government. Consequently, candidates, whose integrity and skills were out of doubt, but they were not supported by the executive authorities, had failed to arouse the support of the majority of JCP members.
JCP judicial members, on the other hand, are divided. Even Judge Amicin did not argue the suggestion that all judges of the Supreme Court should be part of the constitutional benches.
The Pakistani peoples’ party (PPP) managed to train constitutional benches in the high court of the Sindh (SHC), where the judges, who are in good PPP books, were selected for the constitutional benches. The PPP government is satisfied with these constitutional benches.
After the 26th amendment, the executive was also succeeded to transfer the judges of different high lessons to the IHC. Likewise, the government was able to be approved by the appointment of the transferred judge Judge Sarfraz Dogar as a chief judge of the IHC.
The superior judges of the High Court of Peshawar (PHC) as well as the high court of Balutchistan (BHC) which are not the good books of the government, have been neglected for their appointment as the main judges of high lessons.
Despite the desire of JCP judicial members, the members of the executive did not vote for the elevation of the chief judge of the High Court of Lahore (LHC) at the Supreme Court.
Govt has won cases before CB
After January 27, instead of fixing the affair of the 26th amendment, the Constitutional bench preferred to fix the intra-haired appeal of the government against the judgment of the Supreme Court, which judged that the trials of the civilians of the military courts were unconstitutional.
After more than 50 hearings, the CB by a majority 5-2 set aside the verdict of the Supreme Court and approved the trial of civilians before the military courts. Likewise, he also put aside another judgment of the Supreme Court, who judged that PTI had the right to receive seats reserved after the election of February 8.
The transfer of three judges of different high lessons to the IHC was also approved by the CB. Even the question linked to the determination of their seniority was sent to the president of Pakistan for decision.
Now, the debate has continued that the CB, which is the creation of the 26th amendment, can decide on these petitions.
Hassan Kamal Wattoo Advocate says that article IV of the Code of Conduct of the judges requires that “a judge must resolutely refuse to act in a case involving his own interest”. Thus, he says, the CB is created by the 26th amendment, and its members receive increased powers, therefore, the only answer is a full court.
The government does not want judge Mansoor Ali Shah and judge Munib Akhtar to be included in the bench, hearing calls from the 26th amendment case. Now, all eyes are on the CB of eight members, that he refers the question to the inclusion of more judges.
Recently, former Senator Mustafa Nawaz Khokhar had approached the Supreme Court, requesting the implementation of the majority decision of the Constitutional Bancs Committee for having set a case of 26th amendment to the full court.
The Office of the Supreme Court registrar raised objections to its petition. Khokhar had declared that the appeal against the order of the registrar’s office would soon be deposited.
Meanwhile, an increasing perception took root: while the former chief judges were considered to form benches sharing the same ideas, the current dynamics suggest that benches “aligned” by the government are being trained, with the tacit cooperation of certain judges. Unless transparency is brought to the process of constitution of benches, the legitimacy of the judiciary can be increasingly in question.
The former additional prosecutor General (AAG) Tariq Mahmood Khokhar said that the judges appointed after the promulgation of the 26th amendment had personal interest in his constitutionality. “They cannot be judges in their own cause; their challenge is necessary,” he said.
“The judges who govern in their own interest violates both independence and impartiality.” The former AAG said, adding that allowing a judge to decide on his own cause has undermined both substantial and procedural justice.
“Justice must not only be done, but also be clearly considered to be made. Even if the decision is considerably correct, its legitimacy is marred,” said Khokhar. He warned of an increasing bond between the executive and the judiciary.
“We are witnessing a dangerous coalition between the executive and the judiciary, boldly undermining the independence of the judiciary in Pakistan,” he said. He stressed that, whatever the lack of constitutional, democratic and moral legitimacy of the government, he continued his efforts to put judicial power under his control.
Khokhar noted that the JCP, now an instrument of the government, has become a little more than a tool in the hands of the ruling authorities. “His recent appointments before the High Court and the Supreme Court mark the erosion of judicial independence, a serious threat to the integrity of our legal system.”
However, he pointed out that the assault manifesting against the judiciary would not be undisputed. “Lawyers, the public and the independent media have already expressed their indignation, respecting such a blatant encroachment,” he said.
“The constitutional guarantees and international commitments in Pakistan to maintain judicial independence have been ignored. The loss of judicial autonomy directly undermines democracy and the rule of law.”
Expressing a deep concern concerning judicial complicity, he said: “Our judicial system, with its tumultuous history, has reached a new hollow. It is all the more tragic since certain members of the judiciary, having learned nothing from past errors, are accomplices of this erosion of their own institution.”
Stressing the severity of the situation, he concluded: “In a country already struggling with many crises, this new crisis is both reckless and destructive. It is a serious error – the one that will have lasting repercussions for the future of Pakistan.”
Rida Hosain Advocate said that almost a year after the 26th amendment adopted and after having “considerably prejudicial the constitutional order, petitions will be heard.” Petitions must be placed before a full court as it existed before the 26th amendment, “said Hosain.
“It is in the public domain that this constitutional bench was appointed by votes of members of the government on the JCP. The judges who are on the constitutional bench (under the appointment of the government) cannot determine the validity of an amendment strongly supported by the government itself,” she added.
