ISLAMABAD:
The Supreme Court on Thursday held a discussion on the composition of the bench competent to hear the petitions against the 26th constitutional amendment, with the petitioners’ lawyer seeking referral of the matter to a bench comprising the 16 SC judges, who formed the entire court before the amendment.
An eight-member Constitutional Bench (CB) of the Supreme Court headed by Justice Amin-ud-Din Khan on Thursday heard petitions against the 26th Constitutional Amendment, which brought sweeping changes in the judiciary, including the formation of constitutional benches in the SC and high courts.
During the hearing, senior advocate Munir A Malik, appearing for Balochistan Bar Council and Balochistan High Court Bar, said that he adopted the arguments presented by advocate Hamid Khan but also wanted to make some additional arguments.
When Justice Jamal Khan Mandokhail noted that Hamid Khan was not arguing for the current full court but for a 16-member bench, Malik responded that his position was the same. “The case should be heard by the full court as it existed before the amendment,” he said.
Justice Mandokhail observed that such a tribunal would not constitute a comprehensive tribunal but a larger tribunal.
Malik said he wanted to read Article 191-A of the Constitution.
He said the 26th Amendment does not say that the Supreme Court will exercise its powers only through a CB. The CB is part of the Supreme Court itself – it is not a separate entity.
“The definition of the Supreme Court is found in Article 176 of the Constitution, which states that the Supreme Court includes the Chief Justice and all judges. My argument is that this case should be heard by the Supreme Court as a whole.”
Justice Mandokhail asked whether a collegium comprising all judges would not still be called a tribunal. Munir Malik responded in the negative, saying it would be called Supreme Court en banc – full court – which he said was a universally recognized practice.
Justice Ayesha Malik pointed out that there is a convention on this and no court order prevents the formation of a full court. Justice Muhammad Ali Mazhar asked whether the CB had issued such an order and to whom it would be addressed.
Malik responded that such an order would apply to all authorities under the Constitution. Justice Mandokhail asked if the court made such an order, would the full court be called CB.
Malik said his argument is that Article 191-A has not changed the definition or powers of the Supreme Court. A full court, acting like the Supreme Court, can hear this case.
“The powers of the Supreme Court can only be removed by abolishing the court itself. Article 176 remains unchanged in the Constitution. A full court should be called the Supreme Court – the term bench is foreign to the Constitution.”
Justice Mandokhail observed that the 26th Amendment did indeed not restrict the jurisdiction of the Supreme Court. “The Judicial Commission of Pakistan (JCP) can, however, form a constitutional bench comprising all the judges,” he said.
Justice Amin-ud-Din Khan asked whether the CB should ignore Section 191-A and pass an order.
Justice Ayesha Malik said Article 191-A does not take away the judicial powers of the SC. “He himself is being questioned. Why should we move forward by approving him first?”
Justice Muhammad Ali Mazhar asked what was the justification of the existing judiciary if Section 191-A was to be ignored. Justice Amin-ud-Din Khan pointed out that the bench itself was constituted by a committee formed by the 26th Amendment.
Malik responded that his argument was simple: that nothing prevented the judiciary from issuing a judicial order.
During the hearing, an exchange of remarks took place between the judges.
Justice Musarrat Hilali stressed that the judiciary must return to ground zero and examine whether the ensuing amendments violated fundamental rights. “Judges appointed after the 26th Amendment cannot hear this case,” she added.
Justice Mandokhail, however, disagreed with this view, questioning whether the new judges appointed after the amendment were imported from another country.
Justice Mazhar observed that the appointment of judges to the Supreme Court had no connection with the amendment. “The number of Supreme Court justices was increased by law, not by the 26th Amendment,” he said.
Justice Ayesha Malik said these judges were, however, appointed to the Supreme Court according to the procedure laid down in the 26th Amendment.
Responding to Malik’s contention that only judges who were part of the Supreme Court before the 26th Amendment should hear the case, Justice Mandokhail asked how the CB could exclude its brother judges.
Justice Hilali stressed that the fate of judges appointed after the 26th constitutional amendment depended on the outcome of the case. “Whether they remain as SC judges or not will be known once the verdict is announced,” she said.
Justice Mandokhail asked where the judge would go if the court struck down the amendment. Malik replied that the judge would return to their respective high courts.
Later, the court adjourned the hearing till Monday.
