ISLAMABAD: Justice Jamal Khan Mandokhail on Monday questioned whether the Supreme Court judges hearing petitions against the 26th Constitutional Amendment could do so if they were its “beneficiaries”.
The observation came during the hearing of multiple petitions challenging the amendment, which reshaped the process for appointing the chief justice of Pakistan, curtailed the apex court’s suo motu powers, and introduced constitutional benches (CBs) to hear constitutional matters.
The eight-member CB, headed by Justice Aminuddin Khan, includes Justices Jamal Mandokhail, Muhammad Ali Mazhar, Ayesha Malik, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhtar Afghan and Shahid Bilal Hassan.
At the outset, former Supreme Court Bar Association (SCBA) president Abid Shahid Zuberi reiterated the demand for a full court to hear the case, arguing that only judges appointed before the 26th Amendment should be part of the bench. He maintained that since the constitutional amendment itself was under challenge, the legitimacy of the CB’s composition was also in question.
Justice Mandokhail asked whether judges could hear the case if they were beneficiaries of the legislation. “The chief justice was appointed under the 26th Amendment. If the constitutional amendment had not been passed, Yahya Afridi would have become the chief justice as per seniority,” he remarked. “If we are the beneficiaries, can we then sit on the bench?”
Justice Mazhar questioned who would hear the case if all judges were deemed beneficiaries, while Justice Ayesha Malik noted that Article 191A of the Constitution provided for the formation of constitutional benches but did not specifically address full courts.
Zuberi argued that the CB had the authority to issue a judicial order for a full court, while Justice Hilali observed that the bench could not issue such directions if its own jurisdiction was under question.
Justice Naeem Afghan remarked that under Article 191A, constitutional benches were empowered to hear such matters and that the article effectively made the CB the full court for constitutional cases.
The hearing was adjourned until Tuesday.
The 26th Amendment, passed in October last year, has been widely criticised by opposition parties, bar councils, and legal experts, who contend that it undermines the judiciary’s independence. The petitioners have urged the court to strike down the law in whole or in part, citing procedural flaws and constitutional violations.
