26th Amendment does not bar full court from hearing cases before Constitutional Bench, remarks Justice Ayesha

ISLAMABAD: Justice Ayesha Malik on Wednesday observed that there was no bar on a full Supreme Court hearing a case fixed before the Constitutional Bench under Article 191A introduced in the 26th Amendment.

She made the remarks as an eight-member resumed hearing over three dozen petitions against the 26th Constitutional Amendment, which was passed by Parliament during an overnight session in October last year.

Advocate Khwaja Ahmad Hosain, counsel for veteran politician AfrasiabKhattak, presented his arguments today.

The live stream of the hearing initially faced technical issues, with the audio being cut off. However, the issues were later resolved with proceedings being streamed as per usual. The hearing was later adjourned till 11:30am tomorrow (Thursday).

Justice Aminuddin Khan is heading the bench hearing the case. It also includes Justices Ayesha, Mohammad Ali Mazhar, Jamal Khan Mandokhail, Syed HasanAzharRizvi, MusarratHilali, NaeemAkhtar Afghan and Shahid Bilal Hassan.

At the outset of the hearing, Hosainemphasised that the judiciary’s reputation “does not depend on the 26th Constitutional Amendment”. “This case should be heard by a different independent bench,” the lawyer asserted.

Justice Mandokhail then asked, “Do you not trust this bench?”, at which the lawyer said that a decision on Article 191A — through which the CB in the apex court was introduced — should be taken by the “original full court”.

Justice Rizvi noted that Hosain’s petition did mention the term “original full court”. The counsel clarified that he did not say “this bench is not independent”.

Justice Mandokhail remarked, “You yourself said that the case should be kept before another independent bench. Will we judges be included in that ‘independent bench’?”

Justice Aminuddin also wondered whether CJP YahyaAfridi would be a part of that “independent bench”, to which Hosain replied that he “absolutely would be”.

Here, Justice Mandokhail questioned Hosain that if the current CB “could not hear this case, how could it issue any order?”.

The lawyer replied, “Why is the court seeking a path to issue an order? So far, the Centre has not raised any objection to a full court or [the CB] issuing any order.”

Justice Aminuddin responded that each lawyer had their own stance, and that the bench was raising questions after considering the Constitution. “Some lawyers are even saying to keep aside the Amendment,” Justice Mandokhail observed.

At one point, Justice Mazhar noted, “If 26 judges are included, then it will become a regular bench.” Hosain also agreed that it would not be a constitutional bench.

Justice Mandokhail recalled Dr Adnan Khan’s arguments from yesterday, in which he contended that the SC and the CB were separate entities. The judge then directed the lawyer to detail when the concept of benches came into existence.

When Justice Mazhar mentioned that some lawyers argued that other SC judges can also be included in the current bench, Hosain asserted that the CB was also a bench of the apex court.

Justice Ayesha then directed the counsel to read Article 191A in conjunction with its Clause 3, which says “no bench of the Supreme Court other than a Constitutional Bench shall exercise the following jurisdictions vested in the Supreme Court”, with the latter including the SC’s original jurisdiction under Article 184.

Justice Ayesha observed that the provision said the specified jurisdictions were to be exercised by the SC’s CB. “For some reason, we keep reading this as an ouster to say that no one else will [hear the case]. It simply says no other bench will do it.”

She further said that even if Article 191A was interpreted to mean that “no other bench” will hear such cases, it meant that the CB would hear “a case on the original jurisdiction of the Supreme Court” and interpret the Constitution.

“Where is the bar? […] It (the CB) is reading the provisions of the Constitution and interpreting it, and in doing that interpretation, it is saying that […] because this is a matter of a Constitutional Amendment, we interpret this to mean that a full court can hear the matter. Would that make sense?”

Justice Ayesha remarked, “I am speaking for myself; I, in the first case, said I don’t see a bar.” She added that as per Article 191A, the Judicial Commission of Pakistan (JCP) is to nominate judges for the CB.

The judge termed Article 191A a “procedural” provision. She noted that while it imposes restrictions on benches, it does not on the SC, adding that the CB was interpreting the provisions as if they impose a “complete restriction”.

Justice Mazhar then expressed his “complete agreement” with Hosain’s argument that contention that a 16-member bench will be a regular bench, and not a CB.

Hosain contended, “If you say that your hands are tied, then that is not the case. Nowhere is it written that a Constitutional Bench cannot refer the matter to the full court.”

Justice Mandokhail then wondered whether the lawyer meant that the CB could not refer the case to a regular bench but could do so to a full court. “But then that will also be a regular bench. He (Hosain) said that a 16-member bench will be a regular one,” the judge added.

Hosain replied that the judges’ powers had not been taken away from them. “If, let’s suppose, the parliament tomorrow decides under a 27th amendment that an executive officer will preside over the Supreme Court, will you judges not be able to review that decision? You definitely can,” he said.

 

Khattak’s counsel argued that the appropriate procedure for passing the 26th Amendment had not been followed, at which Justice Mazhar said this question could be raised before the attorney general for Pakistan (AGP) when arguing on the merits of the case. At one point, Justice Hassan remarked that the lawyer was “seeking the main relief” through his current petition before the CB.

Hosain replied, “My CMA (civil miscellaneous application) does not say strike down the 26th Amendment. My CMA is very focused, which is what is before your lordships now. It is ‘please send these cases to the original full court […] and there is nothing stopping you from doing that’.”

During the hearing, Justice Mandokhail wondered who would hear such a challenge if the “jurisdiction of the entire Supreme Court was taken away through any Constitutional amendment”.

“Even if the powers are taken away, the same Supreme Court will hear it,” he observed, recalling previous arguments that the current CB was not eligible to hear the case against the same 26th Amendment that led to it. Hosain reiterated that there was no bar on the CB referring the matter to the full court, adding that he was not seeking a final decision from the current bench, but a directive to forward the case to the full court. “Your lordships have the power. Please do not underestimate your power,” the counsel said. Hosain then concluded his arguments, following which the hearing was adjourned till tomorrow. Staff Report