Akram Sheikh urges CB to form 24-member bench to hear plea against 26th Amendment
ISLAMABAD:
Senior advocate Akram Sheikh argued before the Supreme Court that the motive behind the 26th constitutional amendment was to prevent scrutiny of the general elections held in February last year.
Sheikh, who himself challenged the 26th Constitutional Amendment, presented his arguments before the eight-member Constitutional Bench (CB), headed by Justice Amin-ud-Din Khan, on Monday.
Counsel stated that the context of this amendment is relevant.
He claimed that there had been elections in the country and that some people believed that these elections would come under scrutiny. To prevent accountability and avoid such scrutiny, the 26th constitutional amendment was introduced last year, he claimed.
Legal and political experts debate the reasoning put forward by the lawyer during his closing arguments.
After the Supreme Court’s majority ruling in the reserved seats case in July last year, there were fears in the government ranks that the apex court might probe the February 8 elections following the retirement of former Chief Justice of Pakistan (CJP) Qazi Faez Isa.
Even Defense Minister Khawaja Asif had consistently expressed concerns over the possibility of an audit of the 2024 elections after Justice Isa’s retirement.
Before the retirement of former CJP Umar Ata Bandial, the PML-N-led government had issued the notification of Justice Isa as the next CJP. However, it did not issue a similar notice to Principal Puisne Judge Syed Mansoor Ali Shah before Isa’s retirement in October last year.
Instead, he waited for the passage of the 26th constitutional amendment, which stipulated that the CJP would be appointed from the three most senior judges of the SC by a parliamentary committee.
Ultimately, the government members of the commission supported the appointment of Justice Yahya Afridi as the new CJP. He was third on the Supreme Court’s seniority list.
There was no explanation as to why Justice Shah was ignored by the committee.
However, legal experts believe that the executive has managed to exert influence over judicial decisions following the 26th constitutional amendment. Even the current government has obtained relief in three crucial cases from the Supreme Court CBs.
The CBs approved trial of civilians in military courts and transfer of judges to the Islamabad High Court. Another CB has overturned the Supreme Court’s July 13 judgment in the reserved seats case. The government thus managed to obtain a two-thirds majority in the National Assembly.
During his arguments, Akram Sheikh suggested to the bench that an order be passed for constitution of a 24-member full bench to hear petitions against the 26th Amendment.
Sheikh said the present CB, which itself is a creation of the 26th constitutional amendment, could not hear this matter. He argued that the CB is not a separate court like the Federal Sharia Court; rather, it is a seat of the Supreme Court itself.
The judges sitting on this bench are members of the Supreme Court of Pakistan as well as members of the CB. They sort of wear two hats: one as judges of the Supreme Court and the other as members of the CB.
As members of the CB, it is logically and legally impossible for them to declare the 26th Amendment void. Such a declaration may only be issued by a court of competent jurisdiction.
If the 26th Amendment were declared void, then the very foundations on which the judiciary was established would collapse. If the amendment itself is void, the consequent constitution of the judiciary is also legally ineffective.
In this case, the very source of the judicial authority of the judiciary would cease to exist, rendering the CB devoid of legitimate existence in the eyes of the law. The bench, he said, “cannot cut the very branch on which it sits.”
Therefore, the only “hat” available to the court to issue an effective declaration and provide a remedy is that of the Supreme Court Justices. The other hat, he said, would “dissolve in air.”
“Fortunately, members of the judiciary would still retain their heads, but not their hats,” Sheikh noted. “Therefore, the only institution capable of enforcing the principle “Ubi jus ibi remedium” is the Supreme Court as an institution, and not its CB.”
He also asked whether Parliament could abolish the judiciary, which is one of the salient points of the Constitution. He said the entire justice system is based on the fundamental principle expressed in Latin “Ubi jus ibi remedium”: where there is a right, there is a remedy.
“If the benefit of any right is denied to anyone, then the ultimate institution for determining the validity of such a claim is the judiciary of Pakistan. The Supreme Court of Pakistan is the supreme institution vested with such judicial power,” he concluded.
