ISLAMABAD:
The Supreme Court on Thursday held a discussion on the composition of the bench competent to hear petitions against the 26th Constitutional Amendment, as a counsel for the petitioners urged that the case be referred to a bench comprising all 16 SC judges, who formed the full court before the amendment.
On Thursday, an eight-member constitutional bench (CB) of the Supreme Court headed by Justice Amin-ud-Din Khan, heard the petitions against the 26th Constitutional Amendment, which brought about sweeping changes in the judiciary, including the formation of CBs in the SC and high courts.
During the hearing, senior lawyer Munir A Malik, representing the Balochistan Bar Council and the Balochistan High Court Bar, said he adopted the arguments presented by lawyer Hamid Khan but also wished to make some additional submissions.
When Justice Jamal Khan Mandokhail noted that Hamid Khan did not argue for the current full court but for a 16-member bench, Malik replied that his position was the same. “The case should be heard by the full court as it existed prior to the amendment,” he said.
Justice Mandokhail observed that such a bench would not be a full court but a larger bench.
Malik said he wanted to read Article 191-A of the Constitution.
He said the 26th Amendment does not say that the Supreme Court shall 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 comprises the chief justice and all the judges. My submission is that this case should be heard by the Supreme Court as a whole.”
Justice Mandokhail asked if a bench comprising all judges would not still be called a bench. Munir Malik replied in the negative, stating that it would be called the Supreme Court in banc — full court — which, he said, is a universally recognised practice.
Justice Ayesha Malik noted that there is a convention related to this, and no judicial order prevents the formation of a full court. Justice Muhammad Ali Mazhar asked if the CB issued such an order, to whom it would be addressed.
Malik replied that such an order would apply to all authorities under the Constitution. Justice Mandokhail asked if the bench issued such an order, would the full court be called a CB.
Malik said his submission is that Article 191-A did not change the definition or powers of the Supreme Court. A full court, acting as the Supreme Court, can hear this case.
“The powers of the Supreme Court can only be taken away by abolishing the court itself. Article 176 remains unchanged in the Constitution. A full court should be referred to as the Supreme Courtthe term bench is alien to the Constitution.”
Justice Mandokhail observed the 26th Amendment did not indeed curtail the Supreme Court’s jurisdiction. “The Judicial Commission of Pakistan (JCP), however, can form a Constitutional Bench comprising all judges,” he said.
Justice Amin-ud-Din Khan asked if the CB should ignore Article 191-A and pass an order.
Justice Ayesha Malik said Article 191-A does not take away the SC’s judicial powers. “It is itself under challenge before us. Why should we move forward by endorsing it first?”
Justice Muhammad Ali Mazhar asked what was the justification of the existing bench if Article 191-A was to be disregarded. Justice Amin-ud-Din Khan pointed out that the very bench was constituted by a committee formed through the 26th Amendment.
Malik replied that his submission was simple — that nothing prevented the bench from issuing a judicial order.
During the hearing, an exchange of remarks took place among the judges.
Justice Musarrat Hilali noted that the bench must go back to point zero and examine whether the amendments that followed violated fundamental rights. “Judges appointed after the 26th Amendment cannot hear this case,” she added.
Justice Mandokhail, however, disagreed with the view, asking if the new judges appointed after the amendment were imported from some other country.
Justice Mazhar observed that appointment of judges to the Supreme Court had no connection with the amendment. “The number of Supreme Court judges was increased through law, not through the 26th Amendment,” he said.
Justice Ayesha Malik said those judges were, however, appointed to the Supreme Court according to the procedure laid down under the 26th Amendment.
In response to Malik’s contention that only those judges who were part of the Supreme Court before the 26th Amendment should hear the case, Justice Mandokhail asked how the CB could exclude brother judges.
Justice Hilali noted that the fate of the judges who were appointed after the 26th Constitutional Amendment hinged on the outcome of the case. “Whether they remain SC judges or not will be known once the verdict is announced,” she said.
Justice Mandokhail asked as to where the judge would go if the court set aside the amendment. Malik replied that the judge would return to their respective high courts.
Later, the court adjourned the hearing until Monday.
