Justice Muhammad Ali Mazhar on Tuesday remarked that the Supreme Court’s regular and constitutional benches (CBs) were “branches of one tree” as an eight-member CB heard arguments on petitions challenging the 26th Amendment.
The bench hearing the pleas is headed by Justice Aminuddin Khan and also includes Justices Mazhar, Jamal Khan Mandokhail, Ayesha Malik, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhtar Afghan and Shahid Bilal Hassan.
Retired Justice Syed Shabbar Raza Rizvi, a former Lahore High Court judge, concluded his arguments. Dr Adnan Khan, counsel for Mohammad Anas, also presented his contentions. The hearing was adjourned till 11:30am today.
As Rizvi continued his arguments, Justice Mandokhail said, “Even if we accept your stance that the Supreme Court and the bench are separate, then this shows that the bench’s suo motu power is maintained but has been taken away from the Supreme Court.”
However, Rizvi replied that while the CB had been given some powers under the 26th Amendment, none were taken away from the apex court.
Referring to the provision that was introduced through the 26th Amendment, Justice Hilali observed, “The amendment has been made in the Constitution. Article 191A has come into existence and constitutional benches have been made under it.
“Now you are saying there should be a full bench. So will we need to go into the pre-Amendment era […] and suspend the 26th Amendment for it?” she asked, adding that how Article 191A can be “bypassed”.
Rizvi responded that Article 191A should be read in conjunction with other provisions, not on its own. He argued that Article 191A had not “ended the Supreme Court’s jurisdiction under Article 184(3)” (original jurisdiction).
At this, Justice Mazhar observed that the powers under Article 184(3) had been transferred to the CB under Article 191A, adding that the latter provision “clearly mentioned” the same.
Rizvi then proceeded to cite several past judgments to support his arguments, adding that Article 191A should be read with Article 176, which provides the constitution of the SC.
The retired judge noted that despite having special powers, the Federal Shariat Court (FSC) was a part of SC and could also use powers vested in the apex court under Article 187 (issue and execution of SC processes) of the Constitution.
He termed Article 187 a “helpful provision to enact complete justice”.
“The Constitutional Bench can also use powers provided under Article 187. The Constitutional Bench was also made within the Supreme Court, right?” Justice Mazhar said.
Justice Aminuddin remarked that the question at hand was not about the CB’s powers, but rather how to “make judges of non-constitutional benches” part of the CB.
Rizvi, echoing Sheikh’s arguments from yesterday, contended that the CB judges had two roles: “You are the Supreme Court and the Constitutional Bench as well.”
At this, Justice Mazhar remarked, “Regular bench and Constitutional Bench, both are two branches of one tree. […] Nobody is saying it (CB) is not the Supreme Court, or above or below it.”
Justice Mandokhail wondered whether Rizvi meant that benches could not hear the case, but a full court had the powers to do so. Justice Mazhar pointed out that even in India, whose example Rizvi cited, cases before constitutional benches were not referred to regular ones.
He further noted that while the neighbouring country still had the concept of the chief justice being the “Master of the Roster”, Pakistan no longer had the same as committees had been formed to fix cases for hearing.