Justice Muhammad Ali Mazhar on Monday observed that no Supreme Court benches besides the CB could hear constitutional matters as he and seven other judges heard petitions against 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.
Petitioner Muhammad Akram Sheikh, one of the founding leaders of the Supreme Court Bar Association (SCBA) and its former president, presented his arguments in the case. Retired Justice Syed Shabbar Raza Rizvi, a former Lahore High Court judge, also began his arguments. The hearing was adjourned till 11:30am tomorrow.
At the outset of the hearing, Justice Mandokhail asked Sheikh whether he was appearing on behalf of other petitioners in the case, to which the senior advocate replied that he was only representing himself.
Justice Mandokhail noted that Sardar Latif Khosa was stated as Sheikh’s counsel, at which the lawyer sought the judges’ permission to present his own arguments, saying he had the right to do so.
Justice Aminuddin then asked Sheikh to apprise the bench of a “constitutional path to form a full court”.
“We are bound by our oath. So far, not a single lawyer has presented their arguments as per the Constitution. One sahib also said to keep the Constitution aside,” the judge remarked.
Upon Justice Aminuddin asking Sheikh what a full court meant in his opinion, the latter termed the question a “futile debate”.
Then, as opposed to the other requests made so far for a “pre-Amendment” full court, Sheikh sought a full court comprising “all 24” of the present SC judges.
“This Constitutional Bench cannot hear this case,” he asserted, at which Justice Aminuddin noted that the question was how to include a “non-Constitutional Bench judge” in the proceedings.
Justice Mandokhail then asked, “Are you saying that even if there are 24 judges, it should not be called a Constitutional Bench but the Supreme Court?”
Sheikh argued that the 26th Amendment “destroys the total complex of the Constitution; it destroys the organ of the state”.
Sheikh argued that the current eight-member CB was not eligible to strike down the 26th Amendment as it was constituted under the same legislation.
He added that it was a set principle that a smaller bench could not reverse the ruling of a larger bench.
Here, Justice Mazhar remarked, “The matter is new now. The Constitutional Bench has been formed. Give arguments based on the new circumstances.
“You say that this Constitutional Bench cannot strike down the 26th Amendment as it would be a conflict of interest. On the other hand, you say that a full court comprising all 24 judges should be formed. Will that full court of all 24 judges not have a conflict of interest?” Justice Mazhar asked.
Justice Mandokhail also wondered whether having all 24 judges in the bench would mean that they would have the power to change an older decision.
Sheikh replied, “You yourself said that all Supreme Court judges may be nominated as members of the Constitutional Bench. […] I was glad that you have an all-inclusive approach. […] Whatever decision the Supreme Court will take, whatever collective wisdom of the honourable Supreme Court will prevail, that shall be acceptable.”
“There was an election in our country. Some people thought that the election would be scrutinised. Then, a commission was made to prevent accountability, to prevent scrutiny. Background is relevant. […] As a result of which, this Constitutional Amendment came [into existence],” Sheikh claimed.
Justice Mandokhail told the lawyer to present his arguments on the Amendment later on, as first the CB had to decide which bench would hear the case.
The hearing was then adjourned till 11:30am today.