Islamabad:
Some members of a Supreme Court Constitution Bench (CB)-related petitions against the 26th Constitutional amendment have observed that even the current Supreme Court in Pakistan (CJP), Yahya Afridi, was appointed after the change under challenge.
They have also noticed that the existing CB of the Point Court is also created considering the amendment, while CJP does not have authority now to add a new member of the bench who has the right to hear constitutional affairs.
An eight-member CB on Monday resumed to hear the petitions filed against the 26th constitutional amendment and discussed the extent of the full court, CB’s jurisdiction, CJP’s powers and the interpretation of Article 191-A. During the hearing, lawyer Abid Zuberi, who represented various bar associations, claimed that the case should be heard by a full court consisting of judges appointed before the 26th amendment.
He maintained that although the formation of benches was not a lawsuit’s right, the nature of this case was constitutional and therefore deserved hearing of the full court.
Justice Mandokhail asked him if a party in a case has the right to demand a special bench. “If we give your request, should the judges be your choice too?” Abid Zuberi clarified that he did not seek a specific set of judges but requested a full hearing.
Justice Muhammad Ali Mazhar questioned who decides the case whether the amendment itself created CB is under challenge. “According to Article 191-A, constitutional issues can be heard only by a CB, so that the formation of a full court is not explicitly provided in the Constitution.”
Justice Ayesha Malik asked Zuberi what was exactly his request. The lawyer replied that he would have a full court consisting of judges appointed before the 26th amendment.
Justice Mandokhail then noted that if the court accepted its argument, it would mean to exclude the current judges. “Who will hear the case then?”
Justiceafhanen noted that all Zuberi’s arguments related to the law on practice and procedure (PAPA), 2023 and the period before the amendment, while the Constitution now clearly defines the composition of benches, and even CJP cannot add judges to a CB.
