Islamabad:
After eight months, the Supreme Court’s constitutional bench committee on Tuesday decided to set about two dozen petitions against the 26th constitutional change for consultation for an eight-member constitutional bench (CB) on October 7.
Eight member CB includes justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazahar, Justice Ayesha Malik, Justice Hasan Azhar Rizvi, Justice Musarat Hilali, Justice Naeem Akhtar Afghan and Justice Shahid Bilal Hassan.
The case was last heard on January 27 by the same bench. During a short hearing, the bench was issued messages to the respondents and the case postponed for three weeks. However, the case could not be listed for consultation since then.
The petries had also requested the bench to resolve the case before a full court. CB has also issued messages to the respondents about this plea. It is likely that the petries can again request a bench about the hearing of the case by the full court.
But the situation has changed since January 27, when the Judicial Commission of Pakistan (JCP) approved the appointment of eight new judges in the Packed Court. The appointment of new judges came on the JCP agenda shortly after the hearing of the appeals.
Currently, there are 15 Supreme Court judges selected for the constitutional benches of JCP. The judges, who are not in good books on the exercise, have not been named after the constitutional benches.
Likewise, the exercise has so far reached several goals after the 26th change. Since October last year, the director has a dominant role in the appointment of overall court judges. Still, Chief Justice Yahya Afridi is helpless.
Despite his strong wish, he was unable to get the nomination of Justice Miangul Hasan Aurangzeb approved D for the appointment as Islamabad High Court (IHC) Chief Justice. The same thing happened in the appointment of judges in high courts because of the executive head says.
There is great Nexus between Pakistan Bar Council and the government. Therefore, the nominees whose integrity and competence were undoubtedly, but they were not supported by the executive authorities, had not failed to support most of the JCP members.
The legal members of JCP are on the other hand shared. Even justice Aminuddin did not support the hint that all the Supreme Court’s judges should be part of the constitutional benches.
Pakistan Peoples Party (PPP) has been able to form constitutional benches in Sindh High Court (SHC), where the judges who are in good books by PPP have been selected for the constitutional benches. The PPP government is satisfied with these constitutional benches.
After the 26th amendment, the executive has also succeeded in transferring the judges from various high courts to IHC. Likewise, the government is able to approve the nomination of the transferred judge Justice Sarfraz Dogar as IHC Chief Justice.
Senior judges in Peshawar High Court (PHC) as well as Balochistan High Court (BHC), which are not the government’s good books, have been overlooked for their appointment as head of Judge of High Courts.
Despite the wishes of the JCP members, the executive members did not vote for the height of the Lahore High Court (LHC) Chief Justice for the Point Court.
Govt won cases before cb
After January 27, instead of fixing the 26th amendment, the constitutional bench preferred to establish the government in court appeal against the Supreme Court’s judgment, which found that the lawsuits of civilians in military courts were constitutional.
After more than 50 hearings, CB with a majority set aside 5-2 pointed rights and approved civilian trials in the military courts. Similarly, it also set aside another Apex court decision that stated that PTI had the right to reserve seats after the February 8.
The transfer of three judges from various high courts to IHC was also approved by CB. Even the case related to the determination of their seniority was sent to the president of Pakistan for decision.
Now the debate continued that whether CB, which is the creation of the 26th amendment, may decide these petitions.
Hassan Kamal Wattoo Advocate says Article IV of the Judge Code requires “a judge to reject resolutely to act in a case involving his own interest.” So he says CB is created by the 26th amendment and its members receive increased powers from it, therefore the only answer is a full court.
The government does not want Justice Mansoor Ali Shah and Justice Munib Akhtar to be included in the bench, where the 26th change case appeals. Now all the eyes are on the eight-member CB, regardless of whether it will refer the case for the admission of more judges.
Recently, former Senator Mustafa Nawaz Khokhar had approached the Supreme Court and requested the implementation of the majority decision from the Constitutional Bench’s Committee for determining 26.
The Supreme Court registrar office raised objections to his petition. Khokhar had said that the appeal against the registrar office’s order would soon be filed.
Meanwhile, a growing view has taken hold: While former chief dishes were seen to form like -minded benches, the current dynamics suggest that “government -adjusted” benches are now formed with the tacit cooperation between certain judges. Unless transparency is brought to the process of constituting the benches, the legitimacy of the judiciary may increasingly come under doubt.
Formerly further lawyer (AAG) Tariq Mahmood Khokhar has said that the judges appointed after the adoption of the 26th amendment have a personal interest in its constitutionality. “They cannot be judges in their own case; their dressing is required,” he said.
“The judges who decide in their own interest violate both independence and impartiality.” The former AAG said and added that allowing a judge to decide on his own case undermined both material and procedural justice.
“Justice must not only be done, but also manifesting is seen to be done. Even if the decision is significantly correct, its legitimacy is tainted,” Khokhar said. He warned of a growing Nexus between the executive and the judiciary.
“We are witnessing a dangerous coalition between the executive and the court that bravely undermines the independence of the judiciary in Pakistan,” he said. He pointed out that regardless of the government’s lack of constitutional, democratic and moral legitimacy, it has continued its efforts to bring the judiciary under its control.
Khokhar noted that JCP, now an instrument for the government, has become a little more than a tool in the hands of the ruling authorities. “Its recent appointments to High Court and Supreme Court mark the erosion of legal independence, a serious threat to the integrity of our legal system.”
However, he emphasized that the overlay assault on the judiciary will not go undisputed. “Lawyers, the public and the independent media have already expressed their indignation and standing firmly against such an obvious intervention,” he said.
“Constitutional Guarantees and Pakistan’s international obligations to maintain legal independence have been ignored. The loss of legal autonomy undermines democracy directly and the rule of law.”
He expressed deep concern about judicial participation and said, “Our judiciary, with its storming history, has hit a new low. It is all the more tragic that some members of the judiciary who have learned nothing from previous mistakes are complicated in this erosion of their own institution.”
When he emphasizes the gravity of the situation, he concluded, “in a country that already struggled with several crises, this new crisis is both ruthless and destructive. It is a serious mistake – one that will have lasting consequences for the future of Pakistan.”
Rida Hosain Advocate says that almost a year after the 26th change was adopted, and after “significant damage ‘for the constitutional order has already been caused, the petitions will be heard.” The Petitions must be placed before a full court as it existed before the 26th change, “said Hosain.
“It is in the public domain that this constitutional bench has been nominated by votes by government members on JCP. The judges sitting on the constitutional bench (by virtue of the government’s nomination) cannot determine the validity of a change strongly supported by the government itself,” she added.
