ISLAMABAD:
Some members of a Supreme Court constitutional bench (CB)–hearing petitions against the 26th Constitutional Amendment–have observed that even the incumbent chief justice of Pakistan (CJP), Yahya Afridi, was appointed after the amendment that is under challenge.
They have also noted that the existing CB of the apex court is also created in view of the amendment, while the CJP does not have the authority now to add a new member of the bench entitled to hear constitutional matters.
An eight-member CB on Monday resumed hearing the petitions filed against the 26th Constitutional Amendment and discussed the scope of the full court, the jurisdiction of the CB, the powers of the CJP, and the interpretation of Article 191-A. During the hearing, lawyer Abid Zuberi, representing various bar associations, argued that the case should be heard by a full court comprising judges appointed before the 26th Amendment.
He maintained that while the formation of benches was not a litigant’s right, the nature of this case was constitutional and therefore merited a hearing by the full court.
Justice Mandokhail asked him if a party in a case has the right to demand a special bench. “If we grant your request, should the judges also be of your choice?” Abid Zuberi clarified that he was not seeking a specific set of judges but requesting a full court hearing.
Justice Muhammad Ali Mazhar questioned who would decide the matter if the very amendment that created the CB is under challenge. “Under Article 191-A, constitutional issues can only be heard by a CB, so the formation of a full court is not explicitly provided in the Constitution.”
Justice Ayesha Malik asked Zuberi what exactly his request was. The lawyer responded that he wanted a full court comprising judges appointed before the 26th Amendment.
Justice Mandokhail then observed that if the court accepted his argument then it would mean excluding the current judges. “Who will hear the case, then?”
Justice Afghan remarked that all of Zuberi’s arguments related to the Practice and Procedure Act (PAPA), 2023 and the period before the amendment, whereas the Constitution now clearly defines the composition of benches, and even the CJP cannot add judges to a CB.
