JCP huddle clouded by brother judges discord
With the restructured Judicial Council of Pakistan set to hold its first meeting on Wednesday (today), an unexpected situation has occurred as the Supreme Court’s top three judges have developed serious differences over the fixation of petitions against the 26th Constitutional Amendment.
By nature, the amendment has increased the executive and parliament’s influence over the apex court’s internal affairs.
It has been learned that the two senior-most judges, Justice Syed Mansoor Ali Shah and Justice Munib Akhtar, on October 31, wrote a letter to CJP Yahya Afridi and called for an immediate meeting of the committee working under the Supreme Court Practice and Procedure Act 2023.
However, the chief justice did not convene the meeting, and it was held by the other two judges in the chamber of Justice Munib Akhtar. Both committee members, by the majority, resolved that petitions against the 26th Constitutional Amendment be fixed before the full court on November 4.
However, no cause list was issued on the constitutional petitions. Both Justice Shah and Justice Munib wrote another letter to the CJP on Monday in which they regretted the failure to fix constitutional petitions against the amendment, as per their decision.
”As you are aware we, the undersigned members of the committee, under the Act, had on 31st October, 2024, requested the convening of a meeting of the committee to urgently consider the fixation and hearing of the constitutional petitions challenging the recently enacted 26th Amendment to the Constitution. Keeping in view the urgency of the matter, we had asked for the meeting to be held at the earliest on that day itself.
This was pursuant to the proviso to s2(2) of the Act. Despite intimation, the meeting was not convened, therefore, considering the urgency of the matter, we proceeded under s.2(2) of the Act and held the requisitioned meeting of the committee on the same day.”
The letter continues, “The decision of the committee, which was promptly communicated on the same day and is binding and effective in terms of s2(3) of the Act, was that the constitutional petitions challenging the 26th Constitutional Amendment be placed before the Full Court (on the judicial side) and fixed for hearing on 4th November, 2024.
It went on to say, “It is with deep concern and regret that we note that no cause list of the Full Court in the matter of the above constitutional petitions has been issued for 4th November, 2024. The decision of the committee, which continues to stand, has to be given effect.
We are therefore constrained to require the fixation of the aforementioned constitutional petitions before the Full Court positively during the current week, and for the cause list to be issued accordingly forthwith.
In line with established practice sanctioned by the earlier decision of the committee, the Registrar is directed to upload the decision of 31st October, 2024, on the website of the Supreme Court.”
On the other hand, the government has decided to increase the number of SC judges from 17 to 34 through an Act of Parliament.
Former additional attorney general Tariq Mahmood Khokhar states that the country has an unelected ‘parliament’ which claims to restore constitutional balance, adding that it seeks to enact constitutional amendments to position itself as an enforcer of the separation of powers with respect to the judiciary, yet it does not subject itself to that same separation.
Unelected government, unrepresentative legislature and dysfunctional institutions present an existential threat to judicial independence as well as the rule of law, Khokhar noted.
Even an elected parliament does not possess an absolute sovereignty. It has a qualified sovereignty. It cannot legislate against constitutional fundamentals nor democracy nor the independence of the judiciary.
Khokhar says the JCP meeting today (Tuesday) will usher a dark era in the country’s judicial history. A majority of seven judges is all that is needed. The executive has mastered that number. The composition of the Commission negates the separation of powers principle, its powers are an anathema to the independence of the judiciary and natural justice.
He also said that an already besieged Supreme Court now has to contend with the fifth columnists, now numbering three, possibly more. Their numbers may rise in due course. The influx of 17 additional handpicked justices is bound to secure a permanent majority for the State. Against such odds, the struggle for judicial independence seems to be doomed.
This could not have come at a worst possible time: sans democracy, sans rule of law, sans separation of powers and now, sans judicial independence.
A functional court has no power save legal or moral authority; a dysfunctional court ceases to have any. It is a triumph for the State and a defeat for the Supreme Court” he adds.