SC’s regular, constitutional benches are ‘branches of same tree’, says Justice Mazhar
26th Amendment case
ISLAMABAD: Justice Muhammad Ali Mazhar on Tuesday remarked that the Supreme Court’s regular and constitutional benches (CBs) were “branches of one tree” as an eight-member CB heard arguments on petitions challenging the 26th Amendment.
The Amendment was passed by Parliament during an overnight session in October last year, with the PTI claiming seven of its lawmakers were abducted to gain their favour as the party opposed the legislation. The Balochistan National Party-Mengal (BNP-M) also alleged its two senators were being pressured, with both later defying party line to vote in the tweaks’ favour.
The legislation, which altered judicial authority and tenure, has been a lightning rod for debate, with both opposition parties and legal experts questioning its impact on the judiciary’s independence.
According to the cause list for Tuesday, the CB has taken up 37 petitions pertaining to the 26th Amendment.
The bench hearing the pleas is headed by Justice Aminuddin Khan and also includes Justices Mazhar, Jamal Khan Mandokhail, Ayesha Malik, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhtar Afghan and Shahid Bilal Hassan.
Retired Justice Syed Shabbar Raza Rizvi, a former Lahore High Court judge, concluded his arguments on Tuesday. Dr Adnan Khan, counsel for Mohammad Anas, also presented his contentions. The hearing was adjourned till 11:30am today (Wednesday).
As Rizvi continued his arguments, Justice Mandokhail said, “Even if we accept your stance that the Supreme Court and the bench are separate, then this shows that the bench’s suo motu power is maintained but has been taken away from the Supreme Court.”
However, Rizvi replied that while the CB had been given some powers under the 26th Amendment, none were taken away from the apex court.
Referring to the provision that was introduced through the 26th Amendment, Justice Hilali observed, “The amendment has been made in the Constitution. Article 191A has come into existence and constitutional benches have been made under it.
“Now you are saying there should be a full bench. So will we need to go into the pre-Amendment era […] and suspend the 26th Amendment for it?” she asked, adding that how Article 191A can be “bypassed”.
Rizvi responded that Article 191A should be read in conjunction with other provisions, not on its own. He argued that Article 191A had not “ended the Supreme Court’s jurisdiction under Article 184(3)” (original jurisdiction).
At this, Justice Mazhar observed that the powers under Article 184(3) had been transferred to the CB under Article 191A, adding that the latter provision “clearly mentioned” the same. Monitoring Desk
