Islamabad:
The president of the Supreme Court of Pakistan (CJP), Yahya Afridi, faces criticism after the minutes of a Committee of the Supreme Court of three members revealed that he ignored a majority decision last year to form a complete court to listen to requests that challenge the 26th Constitutional amendment.
The SC Committee, which operates under the Law of Practice and Procedure of the 2023 Supreme Court to form regular banks, was chaired by CJP Afridi at the end of October last year, with Judge Syed Mansoor Ali Shah and Judge Munib Akhtar as members.
The majority, Judges Shah and Akhtar had ordered the requests to be listed 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 judges not consult every week?” A main lawyer asked, while talking with the express tribute based on anonymity.
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, 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 complete court meeting.
“Nor do I understand why the CJP was willing to interpret the amendment 26 in favor of the executive’s influence, and reluctant to have the constitutionality of the amendment proven for the first time by a complete session of his companions,” added Jaferii.
The 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, not to accept his 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 decide according to their consciences, and the law is resolved. Again, that is his job, “said the defender.
He said that the largest judicial regression in 30 years, where the same 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 is, the longer its automatic acceptance and, as a result, the corrosion of the Judiciary.”
The former additional attorney general Waqar Rana said that it would have been fair, fair and appropriate, the cases of the 26th amendment were included in the hearing before the meeting of the newly formed Judicial Commission of Pakistan (JCP) that designated a constitutional bank.
The amendment arrived on October 21, 2024 and former CJP Qazi Faez Isa retired on October 26, 2024.
Rana said that the CJP Afridi was designated under the new constitutional dispensation. Therefore, any challenge to amendment 26 for any reason is now practically impossible.
“On the other hand, when amendment 95 was challenged in India, the Supreme Court of India did not celebrate the meeting of the country’s judicial commission before setting the case and the Indian SC, later, attacked that amendment,” he added.
Another main lawyer said that paragraph 3 of the CJP response was strange.
“It indicates that the SC does not believe in transparency and fears criticism. The public comment is the best form of responsibility. Avoiding a complete court meeting at that time shows the intention.
“The matter should have been discussed at a complete judicial meeting because the opinion of the majority of the members of the committee was binding. The law was violated by the CJP,” he said.
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 annul the majority decision. The other judges were not relevant and seek their informal individual opinion was illegal and in direct violation of the law,” he added.
Since November of last year, the Constitutional Bank has not been able to 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 the Constitutional Bank itself is under challenge. Questions are being asked about how the beneficiaries of the 26th Constitutional amendment can decide on their future.
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, Judge Syed Mansoor Ali Shah and Judge Munib Akhtar urged the CJP to immediately fix the hearings 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.
