ISLAMABAD:
The SC on Wednesday resumed hearing the case challenging the 26th constitutional amendment, with members of the eight-judge constitutional bench questioning the extent of their jurisdiction.
The hearing, presided over by Justice Aminuddin Khan, focused on objections raised regarding the composition of the bench formed to hear appeals against the 26th Amendment. The proceedings featured sharp exchanges between the justices and the petitioner’s attorney about the limits of judicial authority and the necessity of bringing the case before a full court.
Justice Shahid Bilal Hassan observed that the petitioner was seeking relief in the main case through the present plea. He said counsel asked the court to turn a blind eye and grant 26th Amendment relief without examining the jurisdictional issue.
The judge emphasized that the first hurdle was the issue of jurisdiction, which had to be crossed before proceeding further. He asked how a court that could not hear the case could refer it to a full court.
Justice Jamal Mandokhail observed that an impression was created as if some judges were on one side and others on the opposite side. He said the judges of the Supreme Court had three duties – to defend, protect and interpret the Constitution.
He added that unless all the judges of the court were accepted collectively, the case could not move forward. He further noted that the perception of division within the judiciary was dangerous and emphasized that the court’s work was bound by constitutional responsibility, not personal views.
During the proceedings, Khawaja Ahmad Hussain, former senator Afrasiab Khattak’s lawyer, presented his arguments and said he would present reasons to have the case heard by a full court. He argued that the institution’s credibility did not depend on the 26th Amendment and said the matter should be heard by another independent bench.
But Justice Mandokhail asked the lawyer if he did not trust the present bench. To this the lawyer replied that the decision under Article 191 should be made by the original full court.
Justice Hasan Azhar Rizvi noted that the words “originally full court” were not mentioned in the plea of the lawyer. The lawyer replied that he was not suggesting that the present bench was not independent.
Justice Mandokhail then observed that since the counsel had said that the case should be heard by another “independent bench”, the question arose whether the same judges would be part of that bench.
Justice Aminuddin Khan asked if the Chief Justice would be included in such a bench and the lawyer confirmed that he would. Justice Mandokhail then questioned how the court could issue an order if it could not hear the case itself.
The lawyer argued that newly appointed judges could be included in the decision and asked why the court was seeking a way to issue an order when the federal government had raised no objection to forming a full court or issuing an order on the matter.
