The chief judge of Pakistan Yahya Afridi faces criticism after the minutes of the Committee of the Supreme Court (SC) revealed that he had ignored a majority decision last year to form a full court to hear petitions contesting the 26th constitutional amendment.
The committee of three members, operating under the law of the Supreme Court and the procedure of the Supreme Court 2023 to train regular benches, was chaired by CJP Afridi at the end of October of last year, with judge Syed Mansoor Ali Shah and Judge Munib Akhtar as members. The majority – Judges Shah and Munib – had ordered that the petitions were set to a full court on November 4, 2024.
According to the minutes, the CJP Afridi argued that the committee had no legal authority to lead the training of a full court. He also consulted all the judges individually and nine of the 13 supported the formation of a constitutional bench to hear the case.
Now that the justification of the CJP for the non-training of a full court is in the public domain, the lawyers question his conduct by asking who will determine how many judges had opposed and what question was asked before each judge.
“How could the judges could have been consulted on a question which, according to law, was not in their jurisdiction? Why each week is not consulted?” asked a lawyer, speaking to The Express PK Press Club under cover of anonymity.
Likewise, lawyer Abdul Moiz Jaferii said he had not understood why an informal survey of other judges had been taken by the CJP after the practice and procedural committee – as he was then – had made a majority decision.
“Nor do I understand why such a determination, if necessary after the committee’s decision, was not taken during a complete official meeting of the court. I also do not understand why the CJP was willing to interpret the 26th amendment in favor of the influence of the executive, and reluctant to have the constitutionality of the amendment tested by a complete seat,” said lawyer Jaferii.
Read: SC judges urge the CJP to call the full court on the pleads of the 26th amendment
Meanwhile, lawyer Asad Rahim Khan said that the work of the chief judge, above all, was to preserve the independence of the judiciary; Do not accept his subordination by the executive.
“Should [former] The chief judge Nasirul Mulk reproduced a full court by hearing the dispute of the 21st amendment, arguing that article 175, paragraph 3, had already been modified, and that there was nothing left to do for the court? For or against, the judges decided according to their conscience and the law was settled. Again, it was their work, “said the lawyer.
He added that the greatest judicial regression in 30 years – where the very passage of the amendment is under a cloud – cannot be treated as a fact. “Following this logic, if the constitution was overthrown by a [provisional constitutional order] PCO or other illegal means of tomorrow, which would not be heard either, as would be [illegally] protected in the text of the Constitution, “he added.
The longer the amendment, the longer its automatic acceptance and, therefore, the longer the corrosion of the judiciary. Another main lawyer said that paragraph three of the CJP’s response was weird.
“This indicates that SC does not believe in transparency and fears of criticism. Public comments are the best form of responsibility. Avoiding a complete meeting of the court at that time shows the intention. The case should have been discussed in the midst of a court meeting because the opinion of the majority of committee members was restrictive.
He asked how a member could violate the decision of a statutory committee authorized to decide how and what cases should be fixed. The status did not give power to a member to cancel the majority decision. The other judges were not relevant and the search for their informal individual opinion was illegal and without violation of the law, he said.
Since November of last year, the constitutional bench has not been able to decide on the fate of the 26th constitutional amendment. In January, the constitutional bench resumed the case and postponed the hearing for three weeks. Later, the bench did not hear the case. Interestingly, the creation of a constitutional bench itself is in question. Questions are raised on how beneficiaries of the 26th constitutional amendment can decide their future.
Find out more: The judicial reforms shape the first constitutional bench of SC
Now the situation has changed before the Supreme Court. Eight new judges have been raised at the Supreme Court since February. Even most of them are included in the constitutional benches.
Last November, judge SC, judge Mansoor Ali Shah and judge Munib Akhtar urged the CJP to immediately repair the hearings for the pleas of the 26th constitutional amendment.
In their letter, the two judges, which are part of the committee responsible for fixing the cases and for training benches under the law (2023) on the practice and procedure of the Supreme Court, declared that the committee had decided to hear these constitutional requests before a full court, with the date of initial hearing fixed to November 4.
The dispute began on October 31, when judges Shah and Akhtar officially discussed a letter to the CJP Afridi, asking him to hold a meeting under the Practices and Procedure of the Supreme Court.
Without response from the CJP, judges Shah and Akhtar held an independent meeting in the latter’s rooms to determine the following steps.
After this private session, the two judges decided by the majority vote to provide the requests of the amendment to a full court on November 4.
They then sent a second letter to CJP Afridi, expressing their concerns about postponement. According to the letter, the judges had previously informed the registrar of their decision on October 31 and asked the registrar to publish the decision on the official website of the Supreme Court.
They argued that the petitions contesting the amendment required a full examination on the part of the full court, because this case implies constitutional implications which go beyond standard judicial concerns.
By refraining from convening a full court, the chief judge had, according to some experts, pointed out a cautious approach to the management of these cases, potentially seeking to avoid overtaking or political tangles.
