Islamabad:
Chief Justice of Pakistan (CJP) Yahya Afridi faces criticism following the protocol of a three-member Supreme Court Committee revealed that he ignored a majority decision last year to form a full court to hear petitions who contested the 26th constitutional change.
The SC Committee operating according to the Supreme Court’s practice and procedure, 2023 to form regular benches, was led by CJP Afridi at the end of October last year, with Justice Syed Mansoor Ali Shah and Justice Munib Akhtar as members.
The majority – Justices Shah and Akhtar – had ordered the petitions to be heard before a full court on November 4, 2024. According to the protocol, CJP Afridi claimed that the committee was missing legal authority to impose a full court. He also consulted all judges individually, and nine of the 13 supported the formation of a constitutional bench to hear the case.
Now that CJP’s rationale for the non-formation of a full court is in public domain, lawyers are questioning his behavior by asking who will decide how many judges were against and what question was asked for each judge.
“How could the judges have been heard of a question that, according to the statute, was not within their jurisdiction? Why are all 23 judges consulted every week not?” asked a senior lawyer while talking to Express Pakinomist on condition of anonymity.
Attorney Abdul Moiz Jaferii said he could not understand why an informal vote of other judges was taken by CJP after the practice of the practice and procedure – as it was – made a majority decision.
“In the same way, I cannot understand why such a decision, if necessary after the committee’s decision, was not made in a formally full court meeting.
” I also cannot understand why CJP was willing to interpret the 26th change in favor of the influence of the exercise, and reluctant to have the constitutionality of the change first tested by a full meeting of his friends, “Jafi added.
Lawyer Asad Rahim Khan said that the Chief Justice job, before everything else, is to preserve the independence of the judiciary – so as not to accept its subordination of the executive.
“Should [former] Chief Justice Nasirul Mulk has postponed a full court from hearing the challenge to the 21st amendment by claiming that Article 175 (2). 3, had already been changed and there was nothing left for the right to do about it? For or against, the judges decide according to their conscience and the law is settled. Again, it’s their job, ”the lawyer said.
He said the biggest judicial regression of 30 years – where the amendment is under a cloud – cannot be treated as a fait completion.
“To go after this logic if the constitution was undermined through a [provisional constitutional order] PCO or some other illegal funds tomorrow it wouldn’t be heard either as it would be [illegally] Protected in the text of the Constitution, ”he added.
“The longer the amendment is indefinite, the longer its automatic acceptance and as a result, the longer the corrosion of the judiciary.”
Formerly further lawyer Waqar Rana said it would have been fair, fair, 26.
The change came on October 21, 2024 and the former CJP Qazi Faez Isa retired on October 26, 2024.
Rana said CJP Afridi was appointed under the new constitutional exemption. Thus, every challenge to the 26 -change proposal on every reason is now almost impossible.
“On the other hand, when the 95th amendment was challenged in India, the Indian Supreme Court did not hold the meeting in the country’s judicial commission before the case and the Indian SC, later, turned down this change,” he added.
Another senior lawyer believed that paragraph. 3 in CJP’s response was Bisarr.
“It indicates that SC does not believe in transparency and fear of criticism. Public comment is the best form of accountability. To avoid a full hearing at that time, the intention shows.
“The case should have been discussed at a full hearing because the statement from the majority of members of the committee was binding. The law was violated by CJP,” he said.
He asked how a member could violate the decision of a statutory committee authorized to decide how and what cases should be corrected. “The statute did not give the power to a member to exceed the majority decision. The other judges were not relevant and that they sought their informal individual opinion was illegal and in direct violation of the law,” he added.
Since November last year, the constitutional bench has not been able to decide the fate of the 26th constitutional amendment. In January, the constitutional bench took up and postponed the hearing for three weeks. Later, the bench did not hear the case.
Interestingly, the creation of the constitutional bench itself is under challenge. Questions are raised about how the recipients of the 26th constitutional amendment can decide on their future.
Now the situation has changed in the point of view. Eight new judges have been raised to the point of point since February. Even most of them are included in the constitutional benches.
Last November, Justice Syed Mansoor Ali Shah and Justice Munib Akhtar CJP urged to immediately resolve hearings to the pleas that challenged the 26th constitutional change.
In their letter, the two judges, who are part of the committee responsible for establishing cases and forming benches according to the Supreme Court’s practice and procedure law (2023), decided that the committee has decided to hear these constitutional petitions in a full court with the first consultation date set for November 4.
The dispute began on October 31, when Justices Shah and Akhtar formally dealt with a letter to CJP Afridi and urged him to hold a meeting under the Supreme Court’s practice and procedure, 2023.
Without response from CJP, Justices Shah and Akhtar held an independent meeting in the latter chambers to determine the next steps. After this private session, the two Justices decided by the majority to bring the amendment to a full court on November 4th.
They then sent another letter to CJP Afridi and expressed their concern about the postponement. According to the letter, the judges had previously informed the Justice Secretary of their decision on October 31, and instructed the Justice Secretary to publish the decision on the Supreme Court’s official website.
They argued that the petitions that challenge the amendment require a comprehensive review of the full court as this case involves constitutional consequences that go beyond ordinary legal concerns.
By refraining from convening a full court, Chief Justice had, according to some experts, signaled a cautious approach to handling such cases and potentially tried to avoid judicial overreaction or political enthusiasts.
