ISLAMABAD:
While the constitutional bench delays hearing petitions challenging the 26th Constitutional Amendment, the Supreme Court has questioned the validity of the amendment, which prevents regular benches from exercising jurisdiction in matters related to the interpretation of the law and the constitution.
A three-judge bench, headed by Justice Syed Mansoor Ali Shah, issued a two-page written order, stating that the petitioners argued that the present court could not hear cases related to sub-section (2) of Section 221-A of the Customs Act of 1969, since these question the constitutionality of a law.
Legal experts believe that the regular court has effectively taken up the task of examining the validity of the 26th Constitutional Amendment. “The foundation of judicial review is based on this very premise,” said one expert, referring to Marbury v. Madison in the United States and Pir Sabir Shah in Pakistan.
Experts suggested the court could suspend the amendment’s provision that prevents regular courts from hearing certain matters.
Mirza Moiz Baig, a lawyer, emphasized that although Article 191-A of the Constitution, introduced through the 26th amendment, limits the jurisdiction of regular courts, such “ejection clauses” are generally interpreted restrictively.
He explained that as such, since Article 191-A eliminates the jurisdiction of the Supreme Court to hear certain matters and confers such jurisdiction to special “constitutional” chambers, the ordinary chambers of the Supreme Court may well outline the contours of Article 191- AA
In the same vein, while Article 191-A would suggest that questions relating to the validity of the 26th Amendment can only be decided by the “constitutional bench” of the Supreme Court, one cannot lose sight of the fact that such Courts also owe their existence to the 26th Amendment.
Any decision on the validity of the amendment by the judges of the “constitutional court” may therefore raise concerns about judicial correctness.
“An ordinary bench of the court determining the contours of Article 191-A may, therefore, propose that the Chief Justice constitute a full bench to determine the vires of Article 191-A and examine whether the provision offends the features highlights of the Constitution”.
“This position is also realized as the Supreme Court has consistently held that a court dealing with a matter can decide issues relating to its own jurisdiction,” Baig noted.
Earlier, Justice Mansoor Ali Shah had consistently urged Chief Justice of Pakistan Yahya Afridi to give priority to petitions challenging the 26th amendment.
Despite this, the petitions were not listed, as the Chief Justice considered that the constitutional court should determine the fate of the amendment. However, Justice Shah disagreed, stating that the Constitution does not prohibit the full court from examining the 26th Amendment.
The Constitutional Chamber, however, continues to delay hearing the petitions. It has also faced scrutiny over its composition, as constitutional court judges are appointed by the executive. So far, the constitutional bench has struggled to make an impact, although Judge Ayesha Malik, nominated for the constitutional bench, is also part of the current regular bench issuing the order.
Some attorneys believe Judge Shah should recuse himself from making decisions that could lead to his recusal from the full court hearing on the 26th Amendment. It is expected that the majority of the constitutional court will agree that all judges hear the case.
Meanwhile, a meeting of the All Pakistan Lawyers Action Committee is scheduled today (Wednesday) to discuss a course of action aimed at reversing the 26th Constitutional Amendment.
Responding to the decision of the three-member ordinary court, legal expert Hafiz Ahsaan Ahmad argued that according to Clause 5 of Article 191-A of the Constitution, all petitions, appeals or applications for review against sentences or orders covered by Clause 2, whether pending or filed before the commencement of the 26th Amendment, must be transferred to the constitutional court.
These matters will be heard exclusively by the chambers constituted in accordance with article 175-A of the Constitution. Consequently, he maintained that the customs case in question should have been transferred to the Constitutional Chamber.
Hafiz Ahsaan said that the 26th Amendment had redefined the jurisdiction of the SC by introducing changes in certain articles of the constitution. He pointed out that given this reinterpretation, no other court, in the presence of a constitutional court, can issue an order clarifying the jurisdiction of such matters.
This includes issues that fall under sections (a), (b) and (c) of article 191-A of the Constitution. Therefore, he argued, the order issued by the three-member bench on January 13, 2025 in the customs case—which requires jurisdictional interpretation—should not have been approved by a regular bench.
Since this case involves the interpretation of Section 221-A of the Customs Act, 1969, it falls squarely within the jurisdiction clearly defined by the 26th Amendment and therefore should have been referred to the constitutional court.
Hafiz Ahsaan noted that this order is inconsistent with the provisions of Article 191-A, especially since several petitions challenging the validity of the 26th Amendment are already scheduled to be heard by the constitutional court.
The presiding judge had previously transferred many cases to the recorder’s office due to similar jurisdictional concerns. He described this particular order as a possible rewrite of the Constitution that, in his opinion, lacks legal sustainability.
Finally, Hafiz Ahsaan concluded that since Clause 5 of Article 191-A designates only the constitutional court as the appropriate body to hear and decide such matters, the three-member regular court should have acceded to the request made by the lawyer of the federation to transfer the case to the Constitutional Chamber for the required legal interpretation.
