CJP faces criticism for bypassing majority decision to hear petitions challenging 26th Amendment

Publicly shared minutes of SC meeting call CJP Afridi's justifications into question

Chief Justice of Pakistan Yahya Afridi is facing criticism after Supreme Court (SC) committee minutes revealed that he ignored a majority decision last year to form a full court to hear petitions challenging the 26th Constitutional Amendment.

The three-member committee, operating under the Supreme Court Practice and Procedure Act 2023 to form regular benches, was chaired by CJP Afridi in late October last year, with Justice Syed Mansoor Ali Shah and Justice Munib Akhtar as members. The majority — Justices Shah and Munib — had ordered the petitions be fixed before a full court on November 4, 2024.

According to the minutes, CJP Afridi argued the committee lacked legal authority to direct the formation of a full court. He also consulted all judges individually and nine of the 13 supported the formation of a constitutional bench to hear the case.

Now that the CJP's justification for the non-formation of a full court is in public domain, lawyers are questioning his conduct by asking who will determine how many judges had opposed and what question was placed before each judge.

"How could judges have been consulted on a matter which, according to the statute, was not within their jurisdiction? Why every week all 23 are not consulted?" asked a lawyer, speaking to The Express Tribune on the condition of anonymity. 

Likewise, advocate Abdul Moiz Jaferii said he failed to understand why an informal poll of other judges was taken by the CJP after the practice and procedure committee - as it then was - had made a majority decision.

"I similarly fail to understand why such a determination, if it was needed after the committee decision, was not taken in a formal full court meeting. I also fail to understand why the CJP was willing to interpret the 26th Amendment in favour of the executive’s influence, and reluctant to have the Amendment’s constitutionality first tested by a full sitting of his peers," said advocate Jaferii.

Read: SC judges urge CJP to call full court on 26th Amendment pleas

Meanwhile, advocate Asad Rahim Khan said that the job of the chief justice, before everything else, is to preserve the independence of the judiciary; not to accept its subordination by the executive.

"Should [former] chief justice Nasirul Mulk have put off a full court from hearing the challenge to the 21st Amendment, by arguing that Article 175(3) had already been amended, and there was nothing left for the Court to do about it? For or against, the judges decided according to their consciences, and the law was settled. Again, that was their job," said the advocate. 

He further said that the greatest judicial regression in 30 years – where the amendment’s very passage is under a cloud – can’t be treated as a fait accompli. "Going by this logic, if the Constitution were subverted through a [provisional constitutional order] PCO or some other unlawful means tomorrow, that wouldn’t be heard either, as it would be [illegally] protected in the text of the Constitution," he added.

The longer the amendment is undecided, the longer its automatic acceptance, and, as a result, the longer the judiciary’s corrosion. Another senior lawyer opined that paragraph three of the CJP's response was bizarre.

"It indicates that SC does not believe in transparency and fears criticism. Public comment is the best form of accountability. Avoiding a full court meeting at that time shows the intent. The matter should have been discussed in Full Court meeting because opinion of majority of members of committee was binding. The law was violated by the CJP," said the senior lawyer, speaking on the condition of anonymity. 

He asked how one member could violate the decision of a statutory committee empowered to decide how and which cases were to be fixed. The statute did not give power to one member to overrule the majority decision. The other judges were not relevant and seeking their informal individual opinion was illegal and in out right violation of law, he said. 

Since November last year, the constitutional bench is unable to decide the fate of 26th Constitutional Amendment. In January, the constitutional bench took up the matter and adjourned the hearing for three weeks. Later, the bench did not hear the case. Interestingly, the creation of constitutional bench itself is under challenge. Questions are being raised as to how the beneficiaries of 26th Constitutional Amendment can decide about their future.

Read more: Judicial reforms shape SC's first constitutional bench

Now the situation has changed in the apex court. Eight new judges are elevated to the apex court since February. Even most of them are included in the constitutional benches.

Last November, SC judges Justice Mansoor Ali Shah and Justice Munib Akhtar urged the CJP to immediately fix hearings for the pleas challenging the 26th Constitutional Amendment.

In their letter, the two judges, who are part of the committee responsible for fixing cases and forming benches under the Supreme Court Practice and Procedure Act (2023), stated that the committee has decided to hear these constitutional petitions in a full court, with the initial hearing date set for November 4.

The dispute began on October 31, when Justices Shah and Akhtar formally addressed a letter to CJP Afridi, urging him to hold a meeting under the Supreme Court Practice and Procedure Act 2023.

With no response from the CJP, Justices Shah and Akhtar held an independent meeting in the latter's chambers to determine the next steps.

Following this private session, the two justices decided by majority vote to bring the amendment petitions before a full court on November 4.

They then sent a second letter to CJP Afridi, expressing their concerns over the postponement. According to the letter, the judges had previously informed the registrar of their decision on October 31 and instructed the registrar to publish the decision on the Supreme Court’s official website.

They argued that the petitions challenging the amendment demand a comprehensive review by the full court, as this matter involves constitutional implications that go beyond standard judicial concerns.

By refraining from convening a full court, the chief justice had, according to some experts, signaled a cautious approach to the handling of such cases, potentially seeking to avoid judicial overreach or political entanglements.