Islamabad:
The chief judge of Pakistan (CJP) Yahya Afridi faces criticism after the minutes of a supreme court committee of three members revealed that he had ignored a majority decision last year to form a full court to hear petitions contesting the 26th constitutional amendment.
The SC committee, operating under the law of the Supreme Court and the Supreme Court procedure, 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 Akhtar – had ordered that petitions were listed to hear in full court on November 4, 2024. According to the minutes, CJP Afridi argued that the committee had no legal authority to direct the formation 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 every week the 23 judges are not consulted?” asked a main lawyer, while speaking to L’Express PK Press Club under the cover of anonymity.
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 it was – made a majority decision.
“Nor do I understand why such a determination, if necessary after the committee’s decision, was not taken at an official meeting of the court.
“Nor do I 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 session of its peers,” added Jaferii.
Lawyer Asad Rahim Khan said that the work of the chief judge, above all, is to preserve the independence of the judiciary – without accepting 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 decide according to their conscience and the law is established. Again, it’s their work, “said the lawyer.
He said that the greatest judicial regression in 30 years – where the very passage of the amendment is under a cloud – cannot be treated as a fait accompli.
“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 is and, therefore, the longer the corrosion of the judiciary.”
Former additional prosecutor Waqar Rana said he would have been fair, fair and appropriate that the affairs of the 26th amendment had been registered at the hearing before the meeting of the newly formed judicial commission in Pakistan (JCP) which appointed a constitutional bench.
The amendment occurred on October 21, 2024 and the former CJP Qazi Faez Isa retired on October 26, 2024.
Rana said that CJP Afridi had been appointed as part of the new constitutional exemption. Thus, any challenge for the 26 amendment on any reason is now practically impossible.
“On the other hand, when the 95th amendment was challenged in India, the Indian Supreme Court did not hold the meeting of the country’s judicial commission before fixing the cases and the Indian SC, later, canceled this amendment,” he added.
Another main lawyer considered that paragraph 3 of the CJP’s response was weird.
“This indicates that SC does not believe in transparency and fears of criticism. Public commentary is the best form of responsibility. Avoiding a complete justice meeting at that time shows the intention.
“The case should have been discussed at a complete justice meeting because the opinion of the majority of committee members was binding. The law was raped by the CJP,” he said.
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 requesting it from their informal individual opinion was illegal and in pure and simple violation of the law,” he added.
Since November of last year, the constitutional bench has not been able to decide 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 the constitutional bench itself is in question. Questions are raised on how beneficiaries of the 26th constitutional amendment can decide their future.
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 Syed Mansoor Ali Shah and Judge Munib Akhtar urged the CJP to immediately repair the hearings for the plea contesting 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 law on the practices and procedure of the Supreme Court, 2023.
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.
