Experts split on regular bench's role

Argue whether regular benches should handle constitutional matters

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ISLAMABAD:

As the constitutional bench drags its feet on hearing petitions challenging the 26th Constitutional Amendment, the Supreme Court has questioned the validity of the amendment, which prevents regular benches from exercising jurisdiction in matters involving the interpretation of law and the constitution.

A three-judge bench, led by Justice Syed Mansoor Ali Shah, issued a two-page written order, stating that petitioners argued the current bench could not hear cases related to subsection (2) of Section 221-A of the Customs Act, 1969, as these challenge the constitutionality of a law.

Legal experts believe that the regular bench has effectively taken up the task of examining the validity of the 26th Constitutional Amendment. "The foundation of judicial review is based on this very premise," one expert noted, referring to Marbury v. Madison in the US and Pir Sabir Shah in Pakistan.

The experts suggested that the bench may suspend the provision of the amendment preventing regular benches from hearing certain matters.

Mirza Moiz Baig, an advocate, emphasized that although Article 191-A of the Constitution, introduced through the 26th amendment, limits the jurisdiction of regular benches, such "ouster clauses" are usually interpreted narrowly.

He explained that as such, given that Article 191-A ousts the jurisdiction of the Supreme Court to hear certain matters and confers such jurisdiction to special 'constitutional' benches, the regular benches of the Supreme Court may well delineate the contours of Article 191-A.

In the same vein, while Article 191-A would suggest that questions relating to the validity of the 26th Amendment may only be decided by the Supreme Court's 'constitutional bench', one may not lose sight of the fact that such benches also owe their existence to the 26th Amendment.

Any adjudication on the validity of the amendment by judges of the 'constitutional bench' may, thus, engender concerns about judicial propriety.

"A regular bench of the court determining the contours of Article 191-A may, thus, propose that the chief justice constitute a full court to determine the vires of Article 191-A and examine whether the provision offends the Constitution's salient features."

"This position is also crystallised given that the Supreme Court has consistently held that a bench seized of an issue may decide questions relating to its own jurisdiction," Baig noted.

Earlier, Justice Mansoor Ali Shah had consistently urged Chief Justice of Pakistan Yahya Afridi to prioritize petitions challenging the 26th amendment.

Despite this, the petitions were not listed, as the Chief Justice felt the constitutional bench should determine the fate of the amendment. However, Justice Shah disagreed, stating that the Constitution does not prohibit the full court from examining the 26th Amendment.

The constitutional bench, however, continues to delay hearing the petitions. It has also faced scrutiny over its composition, as judges for the constitutional bench are appointed by the executive. So far, the constitutional bench has struggled to make an impact, although Justice Ayesha Malik, who is nominated for the constitutional bench, is also part of the current regular bench issuing the order.

Some lawyers believe that Justice Shah should refrain from making any decisions that could lead to his recusal from the full court hearing on the 26th Amendment. It is anticipated that the majority of the constitutional bench will agree that all judges should hear the case.

In the meantime, a meeting of the All-Pakistan Lawyers Action Committee is scheduled for today (Wednesday) to discuss a course of action aimed at reversing the 26th Constitutional Amendment.

In response to the decision by the three-member regular bench, legal expert Hafiz Ahsaan Ahmad argued that, according to Clause 5 of Article 191-A of the Constitution, all petitions, appeals, or review applications against judgments or orders covered under Clause 2, whether pending or filed before the commencement of the 26th Amendment, should be transferred to the constitutional bench.

These matters are to be heard exclusively by benches constituted under Article 175-A of the Constitution. Consequently, he contended that the customs case in question should have been transferred to the constitutional bench.

Hafiz Ahsaan said that the 26th Amendment had redefined the SC's jurisdiction by introducing changes to certain articles of the constitution. He pointed out that in light of this reinterpretation, no other bench, in the presence of a constitutional bench, can issue an order clarifying the jurisdiction of such matters.

This includes issues that fall under Clauses (a), (b), and (c) of Article 191-A of the Constitution. Therefore, he argued, the order issued by the three-member bench on January 13, 2025, in the customs case—which requires jurisdictional interpretation—should not have been passed by a regular bench.

Since this case involves the interpretation of Section 221-A of the Customs Act, 1969, it directly falls within the jurisdiction clearly defined by the 26th Amendment and thus should have been referred to the constitutional bench.

Hafiz Ahsaan pointed out that this order is inconsistent with the provisions of Article 191-A, especially since several petitions challenging the validity of the 26th Amendment are already slated to be heard by the constitutional bench.

The presiding judge had previously transferred many cases back to the registrar's office due to similar jurisdictional concerns. He described this particular order as a potential rewriting of the Constitution, which, in his view, lacks legal sustainability.

Finally, Hafiz Ahsaan concluded that, given Clause 5 of Article 191-A designates only the constitutional bench as the appropriate body to hear and decide such matters, the three-member regular bench should have granted the request made by the federation's counsel to transfer the case to the constitutional bench for the required legal interpretation.