ISLAMABAD: Justice Jamal Khan Mandokhail Thursday remarked that the judges of Supreme Court had accepted the 26th Constitutional Amendment, whether willingly or not.
An eight-member Constitutional Bench headed by Justice Aminuddin Khan heard around 36 petitions filed under Article 184(3) of the Constitution, challenging the validity of the 26th amendment. Other members of the bench were Justice Mandokhail, Justice Muhammad Ali Mazhar, Justice Ayesha A Malik, Justice Naeem Akhtar Afghan, Justice Syed Hassan Azhar Rizvi and Justice Shahid Bilal Hassan.
During the hearing, counsels for the petitioners argued extensively over the formation of a Full Court. The proceeding was telecast live on the YouTube channel of the apex court.
When Abid S Zuberi, counsel for seven former presidents of the Supreme Court Bar Association (SCBA), commenced his arguments, Justice Hilali asked him who the bench should ask to form a Full Court. Zuberi replied that the bench will direct the SC’s Practice and Procedure Committee.
He informed the court that the Practice and Procedure Committee, constituted before the enactment of the 26th Constitutional Amendment, will form a Full Court.
When asked which Full Court should be formed — the one before or after the amendment, Zuberi replied that the Full Court existing at the time of the amendment i.e., before it, should be constituted.
Earlier, Munir A Malik, counsel for Balochistan High Court Bar Association, while arguing for the formation of a Full Court, informed the court that he would build upon the arguments previously presented by Hamid Khan. Justice Mandokhail asked the counsel whether the current bench is bound to form a Full Court, or if this is merely a request.
Malik responded that the bench has been requested to issue directions for the formation of a Full Court, as the Supreme Court itself is a constitutional institution, and all its judges should hear these petitions.
Justice Mazhar questioned whether the bench has the authority to order the formation of a Full Court. Malik replied affirmatively, stating that such an order can be issued by exercising judicial powers. Justice Ayesha asked the counsel, “You want the Constitutional Bench to use its judicial powers to form a Full Court? You are relying on the very amendment you are challenging whereas, the court has repeatedly held that reliance should be placed on the original Constitution, not on the challenged amendment.”
Malik, however, argued that judicial powers and jurisdiction are two different matters, adding that the Supreme Court itself is the full court while the constitutional bench is merely a sub-division created within it.
Justice Musarrat Hilali asked how the current bench could decide its own jurisdiction, saying that the court would need to review why the 26th Amendment was enacted in the first place. “In my opinion, judges appointed after the amendment should not sit on this bench,” she observed.
Justice Mandokhail remarked that they were appointed before the 26th amendment. “Were the new judges brought from another country?” he questioned, adding that all judges deserve respect and they should not be targeted.
Justice Musarrat, however, said that she did not say that with a wrong mind.
Justice Mandokhail said that the Chief Justice of Pakistan and he had demanded in every meeting of the Judicial Commission of Pakistan that all the judges of the Supreme Court should be included in the Constitutional Bench.
Munir A Malik submitted that it makes no difference whether the bench is constitutional or regular; the judicial powers remain the same.
Justice Mandokhail told the counsel: “Forget about the jurisdiction, tell us a way in which all the judges can sit on the bench.” Justice Aminuddin asked as to what will happen to the judges currently on the Constitutional Bench. “We have already faced a lot of criticism,” he added.
Meanwhile, the court adjourned the hearing until October 13 wherein Abid S Zubairi would continue his arguments.
