ISLAMABAD:
Some members of a constitutional bench (CB) of the Supreme Court, which hears petitions against the 26th Constitutional Amendment, have observed that even the current Chief Justice of Pakistan (CJP), Yahya Afridi, was named after the amendment that is being challenged.
They have also pointed out that the existing CB of the apex court is also created in view of the amendment, while the CJP does not now have the authority to add a new member of the court with the right to hear constitutional matters.
An eight-member CB on Monday resumed hearing of petitions filed against the 26th Constitutional Amendment and discussed the scope of the full court, jurisdiction of the CB, powers of the CJP and interpretation of Article 191-A. During the hearing, attorney Abid Zuberi, representing several bar associations, argued that the case should be heard by a full court made up of judges appointed before the 26th amendment.
He held that while the formation of tribunals was not a right of litigants, the nature of this case was constitutional and therefore deserved a hearing by the full court.
Justice Mandokhail asked him whether a party in a case has the right to demand a special court. “If we accept your request, should the judges also be of your choice?” Abid Zuberi clarified that he was not seeking a specific group of judges but rather a full judicial hearing.
Justice Muhammad Ali Mazhar questioned who will decide the matter if the same amendment that created the CB is being challenged. “According to Article 191-A, constitutional issues can only be examined by a OC, so the formation of a full court is not explicitly provided for in the Constitution.”
Judge Ayesha Malik asked Zuberi what exactly his request was. The lawyer responded that he wanted a full court made up of judges appointed before the 26th amendment.
Justice Mandokhail then observed that if the court accepted his argument, it would mean excluding the current judges. “Then who will know the case?”
The Afghan judge noted that all of Zuberi’s arguments were related to the Practice and Procedure Act (PAPA) 2023 and the pre-amendment period, while the Constitution now clearly defines the composition of courts, and even the CJP cannot add judges to a CB.
