Refusal to form full court draws flak for CJP

Experts ask why Justice Afridi disregarded majority decision of SC committee

ISLAMABAD:

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

The SC 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 Akhtar — had ordered the petitions be listed for hearing before a full court on November 4, 2024. According to the minutes, CJP Afridi argued that 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 judges are not consulted?" asked a senior lawyer, while speaking to The Express Tribune on the condition of anonymity.

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—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," Jaferii added.

Advocate Asad Rahim Khan said 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 decide according to their consciences, and the law is settled. Again, that is their job," said the advocate.

He said 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."

Former additional attorney general Waqar Rana said it would have been just, fair and proper that 26th Amendment cases were listed for hearing prior to the meeting of the newly formed Judicial Commission of Pakistan (JCP) which appointed a constitutional bench.

The Amendment came on October 21, 2024 and former CJP Qazi Faez Isa retired on October 26, 2024.

Rana said the CJP Afridi was appointed under the new constitutional dispensation. Thus any challenge to the 26 Amendment on any ground is now virtually impossible.

"On the other hand when the 95th Amendment was challenged in India, the Indian Supreme Court did not hold the meeting of the country's judicial commission prior to the case fixation and the Indian SC, later, struck down that amendment," he added.

Another senior lawyer opined that paragraph 3 of the CJP's response was bizarre.

"It indicates that the 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 a full court meeting because the opinion of the majority of members of committee was binding. The law was violated by the CJP," he said.

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 outright violation of law," he added.

Since November last year, the constitutional bench has been unable to decide the fate of the 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 the constitutional bench itself is under challenge. Questions are being raised as to how the beneficiaries of 26th Constitutional Amendment can decide about their future.

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

Last November, Justice Syed 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 Nov 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.