'Full-court can't be formed on demand'

CB issues notices in 26th amendment case

ISLAMABAD:

The Constitutional Bench (CB) of the Supreme Court on Monday finally took up petitions challenging the 26th Constitutional Amendment, 2024 which was bulldozed through parliament in October last year and which paved the way for formation of the CB within the apex court.

An eight-member CB led by Justice Aminuddin Khan commenced hearing the petitions that claim that the 26th amendment has undermined the independence of judiciary, making it subservient to the executive arm of the state.

At the outset of the proceeding, lawyers of the petitioners urged the bench to form a full-court to hear the petitions. Responding to the request, Justice Jamal Khan Mandokhail remarked that a full court cannot be formed according to anyone's wishes.

He said the nomination of judges for the CB is made by the Judicial Commission of Pakistan (JCP), and all judges nominated for the CB are already part of the existing bench.

"While the JCP nominates the judges, a three-member committee comprising Justice Aminuddin Khan, Justice Muhammad Ali Mazhar and myself list cases before the CB," he said.

During the proceedings, Justice Mazhar also engaged with the lawyers requesting a full court. "You seem confused about the full court. One lawyer suggests forming a full court through a judicial order, while another asks for a referral for the full court. Decide among yourselves first."

He asked them to consider the bench as a full court. "Only a CB can hear constitutional matters and all members of the CB are part of this bench," he said.

Justice Mandokhail noted that the current bench effectively acts as a full court for this case.

He said even if a full-court is formed, the petitioners may raise objections to it and may demand exclusion of the CB members, contending that CB is formed through the 26th amendment which is under review.

Petitioner's counsel Uzair Bhandari argued that the 26th Constitutional Amendment, 2024 was passed when the house was incomplete as elections at Senate seats from Khyber Pakhtunkhwa (K-P) province had not yet been held.

Justice Mandokhail asked Bhandari if the 26th amendment was not passed with a two-thirds majority. "If so, how could the house have been incomplete? Was there any objection raised about the house being incomplete or the quorum not being met?"

The counsel contended that the amendment was passed in secrecy without debate.

Lawyer for another petitioner, Shahid Jameel, argued that without a clear mandate, an amendment cannot proceed. He said a number of election-related petitions are still pending before tribunals.

Justice Mazhar stated that election petitions must be dealt with by election tribunals. "According to your argument, hearings on the 26th Constitutional Amendment, 2024 should be delayed until those petitions are resolved. This would mean putting the amendment hearings on hold indefinitely."

Counsel Sheikh Ehsanuddin argued that the 26th amendment has had profound effects. He said the amendments had allowed individuals previously disqualified to join the judiciary.

The court later issued notices to all parties and adjourned the hearing for three weeks.