ISLAMABAD:
On Wednesday, the SC resumed hearing the case challenging the 26th Constitutional Amendment, during which members of the eight-judge constitutional bench questioned the scope of its jurisdiction.
The hearing, chaired by Justice Aminuddin Khan, focused on objections raised over the constitution of the tribunal formed to consider appeals against the 26th Amendment. The process included intense exchanges between the judges and the petitioner’s attorney about the limits of judicial authority and the need to refer the matter to a full court.
Justice Shahid Bilal Hassan commented that the petitioner sought relief related to the main case through this plea. He said the lawyer was asking the court to close its eyes and ears and grant relief on the 26th Amendment without examining the jurisdictional question.
The judge stressed that the first obstacle was the question of competence that had to be overcome before proceeding. He asked how a court that could not hear the case could refer it to a full court.
Justice Jamal Mandokhail observed that the impression was being created that some judges were on one side and others on the other. He said Supreme Court judges had three duties: defend, protect and interpret the Constitution.
He added that unless all the judges of the court were collectively accepted, the matter could not move forward. He further noted that the perception of division within the judiciary was dangerous and stressed that the court’s work was subject to constitutional responsibility, not personal opinions.
During the proceedings, Khawaja Ahmad Hussain, lawyer for former senator Afrasiab Khattak, presented his arguments and said he would present reasons in favor of the case being heard by a full court. He argued that the institution’s credibility did not depend on the 26th Amendment and said the case should be heard by another independent court.
However, Justice Mandokhail asked the lawyer if he did not trust the current court. To this the lawyer responded that the decision under Article 191 should be made by the full original court.
Justice Hasan Azhar Rizvi noted that the words “original full court” were not mentioned in the lawyer’s statement. The lawyer responded that he was not implying that the current court was not independent.
Justice Mandokhail then observed that since the lawyer had said that the case should be heard by another “independent tribunal”, the question arose whether the same judges would be part of that tribunal.
Justice Aminuddin Khan asked whether the Chief Justice would be included in that court, and the lawyer stated that it would be so. Justice Mandokhail then questioned how the court could issue an order if it could not hear the case itself.
The lawyer argued that the newly appointed judges could be included in the decision and asked why the court was looking for a way to issue an order when the federal government had not raised any objection to forming a full court or passing an order on the matter.
