Supreme Court’s Justice Muhammad Ali Mazhar on Wednesday said that the constitutional bench can hear 26th Amendment case and that judges from all the constitutional benches can be included if necessary.
Justice Mazhar’s remarks came as an eight-member bench heard the pleas against the 26th Constitutional Amendment passed by the parliament last year.
The Justice Amin-ud-Din Khan-led bench also includes Justice Jamal Khan Mandokhail, Justice Ayesha A Malik, Justice Syed Hassan Azhar Rizvi, Justice Musarat Hilali, Justice Naeem Akhtar Afghan and Justice Shahid Bilal Hassan.
Around three dozen petitioners, including Pakistan Tehreek-e-Insaf (PTI), Jamaat-e-Islami (JI), Sunni Ittehad Council (SIC), Lahore High Court Bar Association, Lahore Bar Association, Karachi Bar Association as well as the former seven presidents of the Supreme Court Bar Association (SCBA) and various individuals in personal capacity, had challenged the validity of the 26th Constitutional Amendment.
During the hearing today, lawyer Abid Zuberi? representing former presidents of Pakistan Bar Council, argued that the chief justice of Pakistan (CJP) can issue a direction to form a full court.
“There is no restriction on the powers; judicial powers are available under Article 75 [of Constitution],” Zuberi said.
To this, Justice Amin-Ud-Din responded that if a judicial order concerning a full court is passed, then it would be outside the jurisdiction of the judges not part of the constitutional bench.
“The CJP can use [his] administrative powers,” the lawyer contended, to which Justice Amin-Ud-Din said that the CJP had no administrative powers.
Noting that the work of the constitutional bench is limited, lawyer Zuberi said that there is no restriction preventing the matter from being referred to the CJP.
“Referring the matter to the CJP is one thing and passing a judicial order is another,” Justice Amin-Ud-Din observed.
Expanding on the matter, Justice Malik questioned whether Article 191A imposed any restriction on passing a judicial order and whether the Judicial Commission of Pakistan (JCP) could be directed to form a full court?
On the issue of full court, Justice Mandokhail remarked: “I said to include all judges to the constitutional bench but you [Zuberi] oppose it”.
“I did not say that all judges should not be included in the constitutional bench,” the counsel responded.
Justice Malik further questioned the lawyer as to why did he want a bench based on judges before the 26th Constitutional Amendment?
“What is your stance? Should we form a full court or direct the JCP [to do so]? Justice Mazhar asked Zuberi.
“The full court should form a constitutional bench,” the lawyer replied.
Additionally, Justice Amin-Ud-Din noted that Zuberi was neither seeking a 16-member bench nor a full court but instead wanted only 16 judges – who are to hear the case.
“A Constitutional bench’s formation is decided by the judges’ constitutional committee via majority,” the judge added.
Furthermore, on the JCP powers, Justice Malik said that the body is not barred with regard to nomination of judges and that the existing eight-member bench can direct the JCP to form a full court.
“The JCP is not barred from giving such a judicial order,” she said.
Arguing that the judges of the said bench had judicial powers, lawyer Zuberi said that nowhere its written that a full court cannot hear the case and that the full court’s powers had not been “extinguished”.
“The jurisdiction of the constitutional bench to pass a judicial order has not been extinguished,” the counsel noted.
To this, Justice Hilali said that the court has to go before the 26th Amendment, and the Constitutional Bench can issue a verdict by considering itself as the SC.
Moreover, Justice Mandokhail questioned as to why Zuberi didn’t want all judges on the bench.
“If we go before with the amendment and we want the CJP to form a full court [….] The CJP [himself] is a beneficiary of the 26th Amendment,” Justice Hilali remarked, adding that Justice Mansoor Ali Sheh would then be a victim of the amendment.
Upon conclusion of Zuberi’s remarks, the court adjourned the hearing till October 20.