The president of the Supreme Court of Pakistan, Yahya Afridi, faces criticism after the minutes of the Committee of the Supreme Court (SC) revealed that he ignored a majority decision last year to form a complete court to listen to requests that question the 26th constitutional amendment.
The Tres Member Committee, which operates under the Law of Practice and Procedure of the Supreme Court of 2023 to form regular banks, was chaired by CJP Aphridi at the end of October last year, with Judge Syed Mansoor Ali Shah and Judge Munib Akhtar as members. The majority, Judges Shah and Munib, had ordered the requests to be fixed before a complete court on November 4, 2024.
According to the minutes, the CJP Afridi argued that the committee lacked legal authority to direct the formation of a complete court. He also consulted all the judges individually and nine of the 13 supported the formation of a constitutional bank to listen to the case.
Now that the justification of the CJP for the non -formation of a complete court is in the public domain, the lawyers question their conduct when asking who will determine how many judges had been opposed and what question was placed before each judge.
“How can judges be consulted on an issue that, according to the statute, was not within their jurisdiction? Why are the 23?” A lawyer asked, talking with The express trustee under condition of anonymity.
Similarly, the lawyer Abdul Moiz Jaferii said he did not understand why the CJP took an informal survey of other judges after the practice and procedure committee, as it was then, had made a majority decision.
“In the same way, I do not understand why such determination, if it was needed after the committee’s decision, was not taken at a formal meeting of the complete court. I can not understand why the CJP was willing to interpret the 26th amendment in favor of the executive’s influence, and reluctant to have the constitutionality of the amendment first by a complete session of its peers,” said the lawyer Jaferii.
Read: SC judges urinate CJP to call the complete court in the 26th amendment supplications
Meanwhile, lawyer Asad Rahim Khan said that the work of the President of the Supreme Court, before all, is to preserve the independence of the Judiciary; Do not accept its subordination by the Executive.
“Ought [former] The president of the Supreme Court Nasirul Mulk has discouraged a complete court when he heard the challenge to the 21st amendment, arguing that article 175 (3) had already been amended, and there was nothing left for the court to do in this regard. In favor or against, the judges decided according to their consciences, and the law was resolved. Again, that was his job, “said the defender.
He also said that the greatest judicial regression in 30 years, where the passage of the amendment is under a cloud, cannot be treated as an consummated fact. “Going through this logic, if the Constitution was subverted through a [provisional constitutional order] PCO or some other illegal means tomorrow, which would not be heard, as would [illegally] Protected in the text of the Constitution, “he added.
The longer the amendment, the longer its automatic acceptance and, as a result, the corrosion of the Judiciary. Another main lawyer said that paragraph three of the CJP response was strange.
“It indicates that SC does not believe in transparency and fear of criticism. The public comment is the best form of responsibility. Avoiding a complete judicial meeting at that time shows the intention. The matter should have been discussed in the complete judicial meeting because the opinion of the majority of the members of the committee was binding. The law was violated by the CJP,” said the senior lawyer, speaking under the condition of the andonym.
He asked how a member could violate the decision of a legal committee empowered to decide how and what cases would be solved. The statute did not give power to a member to cancel the majority decision. The other judges were not relevant and seeking their informal individual opinion was illegal and, on the right, the violation of the law, he said.
Since November of last year, the Constitutional Bank cannot decide the fate of the 26th constitutional amendment. In January, the Constitutional Bank occupied the matter and postponed the hearing for three weeks. Later, the bank did not listen to the case. Interestingly, the creation of a constitutional bank itself is under challenge. Questions are being asked about how the beneficiaries of the 26th Constitutional amendment can decide on their future.
Read more: Judicial reforms shape the first constitutional bank of SC
Now the situation has changed in the Apex court. Eight new judges have been elevated to the Apex court since February. Even most of them are included in constitutional banks.
Last November, the SC judges Judge Mansoor Ali Shah and Judge Munib Akhtar urged the CJP to fix the hearings immediately for the pleas that challenge the 26th constitutional amendment.
In their letter, the two judges, who are part of the committee responsible for fixing cases and forming banks under the Law of Practice and Procedure of the Supreme Court (2023), declared that the Committee has decided to hear these constitutional requests in a complete court, with the initial hearing date established for November 4.
The dispute began on October 31, when Judges Shah and Akhtar formally addressed a letter to the CJP Aphridi, urging him to hold a meeting under the Law of Practice and Procedure of the Supreme Court 2023.
Without a response from the CJP, Judges Shah and Akhtar held an independent meeting in the latter’s chambers to determine the next steps.
After this private session, the two judges decided on most votes to present the amendment requests before a complete court on November 4.
Then they sent a second letter to CJP Afridi, expressing their concerns about the postponement. According to the letter, the judges had previously informed the registrar of their decision on October 31 and instructed the registrar to publish the decision on the official website of the Supreme Court.
They argued that the requests that challenge the amendment require a comprehensive review by the entire court, since this issue implies constitutional implications that go beyond standard judicial concerns.
When refraining from calling a complete court, the president of the Supreme Court, according to some experts, had indicated a cautious approach to the management of such cases, which could try to avoid judicial exasperation or political entanglements.
