Akram Sheikh urges CB to form 24-member bench to hear plea against 26th Amendment
ISLAMABAD:
Senior advocate Akram Sheikh has argued before the Supreme Court that the motive behind the 26th Constitutional Amendment was to prevent scrutiny of the general elections held in February last year.
Sheikh, who has challenged the 26th Constitutional Amendment, presented his arguments on Monday before the eight-member constitutional bench (CB), headed by Justice Amin-ud-Din Khan.
The lawyer stated that the background of this amendment is relevant.
He argued that there were elections in the country and some people believed that there would be a scrutiny of those elections. To prevent accountability and avoid such scrutiny, the 26th Constitutional Amendment was introduced last year, he said.
Legal and political experts debate the reasoning given by the lawyer during his arguments.
After the Supreme Court’s majority decision in the reserved seats case in July last year, there were fears within the ranks of the government that the top court could probe the February 8 elections after the retirement of former Chief Justice of Pakistan (CJP) Qazi Faez Isa.
Even Defense Minister Khawaja Asif had consistently expressed concern over the possibility of an audit of the 2024 elections following Justice Isa’s retirement.
Before the retirement of former CJP Umar Ata Bandial, the PML-N-led government had issued the notification of Justice Isa as the next CJP. However, he did not issue a similar notification to senior puisne judge Syed Mansoor Ali Shah before Isa’s retirement in October last year.
Instead, he awaited the passage of the 26th Constitutional Amendment, which stipulated that the CJP would be appointed among the top three SC judges by a parliamentary committee.
Finally, the government members of the committee supported the nomination of Justice Yahya Afridi as the new CJP. He was third on the Supreme Court’s seniority list.
There was no explanation as to why the committee was ignoring Justice Shah.
However, legal experts believe that the executive has managed to exert influence over judicial decision-making following the 26th Constitutional Amendment. Even the present government has got relief in three crucial central bank cases from the apex court.
The CBs supported the trial of civilians in military courts and the transfer of judges to the Islamabad High Court. Another OC set aside the Supreme Court’s July 13 judgment in the reserved seats case. As a result, the government managed to obtain a two-thirds majority in the National Assembly.
During his arguments, Akram Sheikh suggested to the court that an order should be passed for constitution of a full bench of 24 members to hear the petitions against the 26th amendment.
Sheikh claimed that the current CB, which itself is a creation of the 26th Constitutional Amendment, could not hear this case. He maintained that the CB is not a separate court like the Federal Shariat Court; rather, it is a court of the Supreme Court itself.
The judges sitting in this court are members of the Supreme Court of Pakistan and the CB. In a sense, they play two roles: one as judges of the Supreme Court and the other as members of the CB.
As members of the CB, it is logically and legally impossible for them to declare the 26th Amendment void. Such a declaration can only be issued by a court of competent jurisdiction.
If the 26th amendment is declared void, then the very basis on which the court was constituted would collapse. If the amendment itself is void, then the constitution of the court under it is also legally ineffective.
In that case, the very source of the court’s judicial authority would cease to exist, leaving the BC devoid of legitimate existence in the eyes of the law. The bank, he said, “can’t cut down the same branch it’s sitting on.”
Therefore, the only “role” available to the court to issue an effective declaration and provide a remedy is that of the judges of the Supreme Court. The other hat, he stated, “would dissolve into air.”
“Fortunately, the members of the tribunal would keep their heads, but not their hats,” Sheikh said. “Therefore, the only institution capable of upholding the principle of ‘Ubi jus ibi remedium’ is the Supreme Court as an institution, and not its central bank.”
He also raised the question of whether Parliament could abolish the judiciary, which is one of the most prominent features of the Constitution. He said the entire justice system is based on the fundamental principle expressed in Latin as “Ubi jus ibi remedium”: where there is a right, there is a remedy.
“If a person is denied the benefit of a right, then the ultimate institution to determine the validity of such claim is the judiciary in Pakistan. The Supreme Court of Pakistan is the supreme institution that has this judicial power,” he concluded.
