26th Amendment case slated for hearing on Oct 7
After eight months, the Supreme Court's Constitutional Benches Committee on Tuesday decided to fix around two dozen petitions against the 26th Constitutional Amendment for hearing before an eight-member Constitutional Bench (CB) on October 7.
The eight-member CB comprises Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazahar, Justice Ayesha Malik, Justice Hasan Azhar Rizvi, Justice Musarat Hilali, Justice Naeem Akhtar Afghan and Justice Shahid Bilal Hassan.
The case was last heard on January 27 by the same bench. During a brief hearing the bench issued notices to respondents and matter was adjourned for three weeks. However, the case could not be listed for hearing since then.
The petitioners had also requested the bench to fix the matter before a full court. The CB has also issued notices to respondents on that plea. It is likely that the petitioners may again request bench for the hearing the matter by the full court.
But the situation has changed since January 27 as the Judicial Commission of Pakistan (JCP) approved the appointment of eight new judges in the apex court. The appointment of new judges came on the JCP agenda soon after the hearing of the appeals.
Currently, there are 15 Supreme Court judges are selected for the constitutional benches by the JCP. The judges who are not in good books of the executive have not been named for the constitutional benches.
Likewise, the executive has so far achieved several objectives after the 26th Amendment. Since October last year, the executive has a dominant role in the appointment of superior courts judges. Even so, Chief Justice \Yahya Afridi is helpless.
Despite his strong desire, he was unable to get the nomination of Justice Miangul Hasan Aurangzeb approve d for the appointment as Islamabad High Court (IHC) chief justice. Same happened in the appointment of judges in high courts because of the executive's major say.
There is great nexus between the Pakistan Bar Council and the government. Hence, the nominees, whose integrity and competency was beyond doubt, but they were not backed by the executive authorities, had failed to muster support of the majority of the JCP members.
The judicial members on the JCP on the other hand are divided. Even Justice Aminuddin did not support the suggestion that all Supreme Court judges should be part of the constitutional benches.
The Pakistan Peoples Party (PPP) has succeeded in forming constitutional benches in the Sindh High Court (SHC), where the judges, who are in good books of the PPP, have been selected for the constitutional benches. The PPP government is satisfied with these constitutional benches.
After the 26th Amendment, the executive has also been succeeded in transferring the judges from different high courts to the IHC. Likewise, the government has able to get approved the nomination of transferred judge Justice Sarfraz Dogar as the IHC chief justice.
Senior judges in the Peshawar High Court (PHC) as well as the Balochistan High Court (BHC) who are not the government's good books, have been overlooked for their appointment as chief justices of high courts.
Despite JCP judicial members' desire, the executive members did not vote for the elevation of Lahore High Court (LHC) chief justice to the apex court.
Govt won cases before CB
After January 27, instead of fixing the 26th Amendment case, the constitutional bench preferred to fix the government intra-court appeal against the Supreme Court judgment, which held that the trials of civilians in military courts were unconstitutional.
After more than 50 hearings, the CB by a majority 5-2 set aside the apex court verdict and endorsed the civilians's trial in the military courts. Similarly, it also set aside another apex court judgment, which held that PTI was entitled to get reserved seats after February 8 election.
The transfer of three judges from different high courts to the IHC was also endorsed by the CB. Even the matter related to the determination of their seniority was sent to the president of Pakistan for decision.
Now the debate continued that whether the CB, which is the creation of the 26th Amendment, can decide these petitions.
Hassan Kamal Wattoo Advocate says that Article IV of the Judges Code of Conduct mandates that "a Judge must decline resolutely to act in a case involving his own interest." So, he says, the CB is created by the 26th Amendment, and its members receive heightened powers from it, therefore, the only answer is a full court.
The government does not want that Justice Mansoor Ali Shah and Justice Munib Akhtar be included in the bench, hearing the 26th Amendment case appeals. Now, all eyes are on the eight-member CB whether it will refer the matter for inclusion of more judges.
Recently, former senator Mustafa Nawaz Khokhar had approached the Supreme Court, requesting for the implementation of the majority decision of Constitutional Benches Committee for fixing 26th Amendment case before the full court.
The Supreme Court Registrar Office raised objections to his petition. Khokhar had said that the appeal against the Registrar Office's order would be filed soon.
Meanwhile, a growing perception has taken hold: while former chief justices were seen as forming like-minded benches, the current dynamic suggests that "government-aligned" benches are now being formed, with the tacit cooperation of certain judges. Unless transparency is brought to the process of constituting the benches, the legitimacy of the judiciary may increasingly come under question.
Former additional attorney general (AAG) Tariq Mahmood Khokhar has said that judges appointed after the enactment of the 26th Amendment have a personal interest in its constitutionality. "They cannot be judges in their own cause; their recusal is required," he has said.
"Judges ruling in their own interest violates both independence and impartiality." the former AAG said, adding that permitting a judge to decide own cause undermined both substantive and procedural justice.
"Justice must not only be done but also be manifestly seen to be done. Even if the decision is substantively correct, its legitimacy is tainted," Khokhar said. He warned of a growing nexus between the executive and judiciary.
"We are witnessing a dangerous coalition between the executive and judiciary, boldly undermining the independence of the judiciary in Pakistan," he said. He pointed out that regardless of the government's lack of constitutional, democratic and moral legitimacy, it has continued its efforts to bring the judiciary under its control.
Khokhar noted that the JCP, now an instrument of the government, has become little more than a tool in the hands of the ruling authorities. "Its recent appointments to the high court and Supreme Court mark erosion of judicial independence, a grave threat to the integrity of our legal system."
However, he stressed that the overt assault on the judiciary will not go unchallenged. "Lawyers, the public, and the independent media have already expressed their outrage, standing firm against such a blatant encroachment," he said.
"Constitutional guarantees and Pakistan's international commitments to uphold judicial independence have been disregarded. The loss of judicial autonomy directly undermines democracy and the rule of law."
Expressing deep concern over judicial complicity, he said, "Our judiciary, with its tumultuous history, has hit a new low. It is all the more tragic that some members of the judiciary, having learned nothing from past mistakes, are complicit in this erosion of their own institution."
Highlighting the gravity of the situation, he concluded, "In a country already grappling with numerous crises, this new crisis is both reckless and destructive. It is a grave error — one that will have lasting repercussions for Pakistan's future."
Rida Hosain Advocate says that nearly a year after the 26th Amendment was passed and after "considerable harm' to the constitutional order has already been caused, the petitions are going to be heard. "The petitions must be placed before a full court as it existed prior to the 26th Amendment," Hosain said.
"It is in the public domain that this Constitutional Bench has been nominated by votes of government members on the JCP. Judges that are sitting on the Constitutional Bench (by virtue of government nomination) cannot determine the validity of an amendment strongly supported by the government itself," she added.