Islamabad:
Juma Jamal Khan Mandokhail, who is also a member of a committee which forms constitutional benches (CBS) of the Supreme Court, raised questions on the absence of rules regulating the practice and the procedure of the CBS.
During the hearing of the case of the seats reserved on Monday, judge Mandokhail asked the lawyer for Sic Faisal Siddiqi to read the provisions of article 191A, which were inserted by the 26th constitutional amendment of 2024.
The lawyer indicates article 191a (6), which says that notwithstanding everything that contained in the Constitution but subject to the law, the judges appointed under the clause (1) can establish rules regulating the practice and the procedure of the CBS.
This provision reflects that CB judges will supervise the rules concerning the regulation of the benches.
However, Judge Amicin Khan replied that the word “can” have been used in this provision, which shows that the framework of the rules is not compulsory.
The hearing on Monday in the reserved seats case reflects that the CB committee including Judge Aminuddin Khan, judge Jamal Khan Mandokhail and judge Muhammad Ali Mazahar are divided on the issue of the CBS rules for the CBS.
According to the press release of November 20, 2024 of the Supreme Court, the registrar SC was responsible for preparing the draft rules regulating the practice and procedures of the CBS in consultation with Judge Muhammad Ali Mazhar, with the final project which will be examined by the approval committee.
However, it is not clear if the registrar SC has shared the rules proposed with the Committee for final approval. The committee formed under article 191a (4) of the Constitution convened its third meeting on November 13, 2024 under the chairmanship of Judge Amicin Khan.
The meeting, assisted by judge Mandokhail, judge Mazhar, and the registrar SC, had deliberated on several critical questions aimed at improving the efficiency and transparency of cases management, in particular for the CBS.
Lawyers already raise their voice over the absence of rules for the appointment of judges to the CBS as well as to the constitution of the CBS, as mentioned in article 191a (6) of the Constitution.
The CJP Yahya Afridi, in its capacity as JCP president, trained a committee to write an objective criterion to select the judges for the CBS under the clause (4) of article 175-A and for the selection of judges for the CBS under articles 191-A and 202-A.
Judge Mandokhail heads the committee. It is not clear if the committee has finalized its rules. It was found that in the absence of rules, some SC judges, which are not in the right books of the executive, were excluded from the CBS.
Three higher judges of SC – CJP Afridi, judge Syed Mansoor Ali Shah and Judge Munib Akhtar – are excluded from the CBS without reason. Even judge Mandokhail expressed the desire on Monday that all judges are nominated for the benches.
If all judges are included in the CBS, the composition of the CB committee will also change and current members will become unimportant. Now, a debate has started to know why some judges show a reluctance to support the appointment of all SC judges for constitutional benches.
Even no explanation was given to exclude the six judges who were part of the original bench which heard the case of the largest examination of the bench hearing in the case. To guarantee transparency, it is necessary that the rules be drawn up for appointments as well as the constitution of the CBS
Now, all eyes are on the largest bench of 11 members to see if he accepts or rejects objections to the bench which does not include judges, who were part of the previous bench for no valid reason.
Some lawyers believe that the CB committee should at least appoint these six judges in the case of hearing seats to the largest bench. At least the committee should move the burden and return the question to the JCP.
It was found that the bench was not properly constituted in the case of article 63a. From now on, PTI lawyers accuse that the reversal of judgment on the interpretation of article 63a of constitution had provided facilitation to the executive for having adopted the 26th constitutional amendment.
