ISLAMABAD:
The SC on Wednesday resumed hearing of the case challenging the 26th Constitutional Amendment, during which members of the eight-judge constitutional bench questioned the scope of their jurisdiction.
The hearing, presided over by Justice Aminuddin Khan, focused on objections raised regarding the constitution of the bench formed to take up the appeals against the 26th Amendment. The proceedings featured sharp exchanges between the judges and the petitioner’s counsel over the limits of judicial authority and the necessity of referring the matter to a full court.
Justice Shahid Bilal Hassan remarked that the petitioner was seeking relief related to the main case through the current plea. He said the counsel was asking the court to close its eyes and ears and grant relief on the 26th Amendment without examining the jurisdictional issue.
The judge stressed that the first obstacle was the question of jurisdiction which had to be crossed before proceeding further. He asked how a bench that could not hear the case could refer it to a full court.
Justice Jamal Mandokhail observed that an impression was being created as if some judges were on one side and others on the opposite. He said the judges of the Supreme Court had three duties – to defend, protect, and interpret the Constitution.
He added that unless all judges of the court were accepted collectively, the matter could not progress. He further remarked that the perception of division within the judiciary was dangerous and emphasised that the work of the court was bound by constitutional responsibility, not personal views.
During the proceedings, Khawaja Ahmad Hussain, the counsel for former senator Afrasiab Khattak, presented his arguments, saying that he would submit reasons in favour of having the case heard by a full court. He argued that the credibility of the institution did not depend on the 26th Amendment and said that the case should be heard by another independent bench.
However, Justice Mandokhail asked the counsel whether he did not trust the current bench. On that the lawyer responded that the decision under Article 191 should be taken by the original full court.
Justice Hasan Azhar Rizvi noted that the words “original full court” were not mentioned in the lawyer’s plea. The counsel replied that he was not implying that the current bench was not independent.
Justice Mandokhail then observed that since the counsel had said the case should be heard by another “independent bench”, the question arose whether the same judges would be part of that bench.
Justice Aminuddin Khan asked whether the chief justice would be included in such a bench, and the lawyer affirmed that he would. Justice Mandokhail then questioned how the bench could issue an order if it could not hear the case itself.
The counsel argued that newly-appointed judges could be included in the decision and asked why the court was seeking a way to issue an order when the federal government had not raised any objection to forming a full court or passing an order on the matter.
