ISLAMABAD:
Some members of the constitutional bench of the Supreme Court (CB), who are hearing petitions against the 26th constitutional amendment, observed that even the outgoing Chief Justice of Pakistan (CJP) Yahya Afridi was appointed after the disputed amendment.
They also noted that the existing CB of the apex court was also created in view of the amendment, while the CJP now does not have the power to add a new member of the judiciary empowered to hear constitutional questions.
On Monday, an eight-member CB resumed hearing the petitions filed against the 26th Constitutional Amendment and discussed the scope of the full court, jurisdiction of the CB, powers of the CJP and interpretation of Article 191-A. During the hearing, lawyer Abid Zuberi, representing various bar associations, argued that the case should be heard by a full court comprising judges appointed before the 26th Amendment.
He argued that even though formation of benches was not a right of the litigant, the nature of this case was constitutional and therefore deserved to be heard by the full court.
Justice Mandokhail asked him whether a party to a case had the right to seek a special seat. “If we grant your request, should the judges also be of your choice?” Abid Zuberi clarified that he was not looking for a specific group of judges but a full audience.
Justice Muhammad Ali Mazhar wondered who would decide the matter if the very amendment that created the BC was challenged. “Under Article 191-A, constitutional questions can only be heard by a CB, so the formation of a full court is not explicitly provided for in the Constitution.”
Judge Ayesha Malik asked Zuberi what exactly his request was. The lawyer responded that he wanted a full court made up of judges appointed before the 26th Amendment.
Justice Mandokhail then observed that if the court accepted his argument, it would mean exclusion of the current judges. “Who will hear the case, then?”
Justice Afghan noted that all of Zuberi’s arguments related to the Practice and Procedure Act (PAPA) 2023 and the period before the amendment, when the Constitution now clearly defines the composition of the benches and even the CJP cannot add judges to a CB.
