Islamabad:
After eight months, the Constitutional Banks Committee of the Supreme Court decided on Tuesday to solve around two dozen requests against the 26th constitutional amendment for the hearing before a Constitutional Bank (CB) of eight members on October 7.
The CB of eight members includes Judge Aminuddin Khan, Judge Jamal Khan Commandkhail, Judge Muhammad Ali Mazahar, Judge Ayesha Malik, Judge Hasan Azhar Rizvi, Judge Musarath Hilali, Judge Naeem Akhtar Afghan and Judge Shahid Bilal Hassan.
The case was last heard on January 27 by the same bank. During a brief audience, the bank issued notices to the respondents and the matter was postponed for three weeks. However, the case could not appear at the audience since then.
The petitioners had also asked the bank to solve the matter before a complete court. The CB has also issued notices to respondents about that plea. It is likely that the petitioners can re -request the bank for the hearing of the matter by the full court.
But the situation has changed since January 27, since the Judicial Commission of Pakistan (JCP) approved the appointment of eight new judges in the Apex court. The appointment of new judges came on the JCP agenda shortly after the Appeals Hearing.
Currently, there are 15 judges of the Supreme Court for constitutional banks for the JCP. The judges who are not in good books of the Executive have not been appointed by constitutional banks.
Similarly, the Executive has achieved several objectives after amendment 26. Since October of last year, the Executive has a dominant role in the appointment of judges of the higher courts. Even so, the president of the Supreme Court \ Yahya Afridi is helpless.
Despite his strong desire, he could not obtain the nomination of Judge Miangul Hasan Aurengzeb approved D for appointment as the Superior Court of Islamabad (IHC) President of the Supreme Court. The same happened in the appointment of judges in the higher courts due to the main executive.
There is a great link between the Pakistan Law Council and the Government. Therefore, the nominees, whose integrity and competition were out of doubt, but were not backed by the executive authorities, had not been able to gather the support of the majority of the members of JCP.
Judicial members in the JCP, on the other hand, are divided. Even Judge Aminuddin did not support the suggestion that all the judges of the Supreme Court should be part of the constitutional banks.
The Popular Party of Pakistan (PPP) has managed to form constitutional banks in the Superior Court of Sindh (SHC), where the judges, who are in good PPP books, have been selected for constitutional banks. The PPP government is satisfied with these constitutional banks.
After amendment 26, the Executive has also succeeded in transferring to the judges from different courts to the IHC. Similarly, the Government has been able to approve the nomination of Judge of Judge Sarfraz to give the president of the Supreme Court of IHC.
The senior judges in the Superior Court of Peshawar (PHC), as well as the Superior Baluchistan Court (BHC), which are not the good government books, have been overlooked by their appointment as main judges of the Superior Courts.
Despite the desire of JCP’s judicial members, the executive members did not vote for the elevation of the Superior Court of Lahore (LHC) President of the Apex Court.
The Government won cases before CB
After January 27, instead of fixing the case of the 26th amendment, the Constitutional Bank preferred to fix the intra-government appeal of the Government against the Supreme Court Judgment, which argued that the judgments of civilians in the military courts were unconstitutional.
After more than 50 hearings, the CB for a majority 5-2 put aside the verdict of the Apex court and supported the judgment of civilians in the military courts. Similarly, he also set aside another judgment of the Apex court, which argued that PTI had the right to obtain reserved seats after February 8.
The transfer of three judges from different courts to the IHC was also supported by the CB. Even the matter related to the determination of his age was sent to the president of Pakistan for the decision.
Now the debate continued that if the CB, which is the creation of the 26 amendment, can decide these requests.
Hassan Kamal Wattoo’s lawyer says that article IV of the Judges Code of Conduct requires that “a judge must refuse to act in a case that involves his own interest.” Then, he says, the CB is created by amendment 26, and its members receive elevated powers, therefore, the only response is a complete court.
The government does not want Judge Mansoor Ali Shah and Judge Munib Akhtar to be included in the bank, listening to the appeals in the case of the 26th amendment. Now, all the eyes are in the CB of eight members, whether to refer to the matter for the inclusion of more judges.
Recently, former Senator Mustafa Nawaz Khokhar had approached the Supreme Court, requesting the implementation of the majority decision of the Constitutional Banks Committee to solve the case of the 26th Amendment before the Full Court.
The Supreme Court Registry Office raised objections to its request. Khokhar had said that the appeal against the order of the Registry Office would be presented soon.
Meanwhile, a growing perception has been considered: while the former main judges were seen as forming banks of related ideas, the current dynamics suggests that banks are now being formed “aligned by the Government”, with the tacit cooperation of certain judges. Unless transparency is taken to the process of constitution of banks, the legitimacy of the Judiciary can be considered more and more.
The former additional attorney general (AAG) Tariq Mahmood Khokhar has said that the judges appointed after the promulgation of the 26th amendment have a personal interest in their constitutionality. “They cannot be judges in their own cause; their challenge is necessary,” he said.
“The judges who govern in their own interest violate both independence and impartiality.” The former AAG said, adding that allowing a judge to decide his own cause undermining substantive and procedural justice.
“Justice should not only be done, but it can also be seen manifestly. He warned about an increasing link between the Executive and the Judiciary.
“We are witnessing a dangerous coalition between the Executive and the Judiciary, boldly undermining the independence of the Judiciary in Pakistan,” he said. He pointed out that, regardless of the lack of constitutional, democratic and moral legitimacy of the government, its efforts have continued to put the judiciary under its control.
Khokhar said that the JCP, now an instrument of the government, has become little more than a tool in the hands of the ruling authorities. “Its recent appointments for the Superior Court and the Supreme Court mark the erosion of judicial independence, a serious threat to the integrity of our legal system.”
However, he emphasized that the assault manifest against the Judiciary will not remain unanswered. “The lawyers, the public and the independent media have already expressed their outrage, keeping firm against such a flagrant invasion,” he said.
“The constitutional guarantees and international commitments of Pakistan to maintain judicial independence have been ignored. The loss of judicial autonomy directly undermines democracy and the rule of law.”
Expressing a deep concern about judicial complicity, he said: “Our Judiciary, with its tumultuous history, has reached a new minimum. It is even more tragic than some members of the Judiciary, without having learned anything from the past errors, they are accomplices in this erosion of their own institution.”
Highlighting the seriousness of the situation, he concluded, “in a country that is already dealing with numerous crises, this new crisis is reckless and destructive. It is a serious error, one that will have lasting repercussions for the future of Pakistan.”
Rida Hosain’s lawyer says that almost a year after the approval of the 26th amendment and after “considerable damage” to the constitutional order has already been caused, the requests will be heard. “The requests must be placed before a complete court as existed before the 26th amendment,” said Hosain.
“It is in the public domain that this Constitutional Bank has been nominated by the votes of the members of the Government in the JCP. The judges who are sitting in the Constitutional Bank (by virtue of the government nomination) cannot determine the validity of an amendment strongly backed by the government itself,” he added.
