'Constitution tweaked to prevent vote audit'

ISLAMABAD:

Senior counsel Akram Sheikh has contended before the Supreme Court that the motive behind the 26th Constitutional Amendment was to prevent the scrutiny of the general elections held in February last year.

Sheikh, who himself has challenged the 26th Constitutional Amendment, presented his arguments before the eight-member constitutional bench (CB), led by Justice Amin-ud-Din Khan, on Monday.

The counsel stated that the background of this amendment is relevant.

He contended that there was an election in the country, and some people believed that there would be scrutiny of that election. To prevent accountability and to avoid such scrutiny, the 26th Constitutional Amendment was introduced last year, he claimed.

Legal and political experts are debating the reasoning given by the counsel during his arguments.

After the Supreme Court's majority decision in the reserved seats case in July last year, there was apprehension within the government's ranks that the apex court might probe the February 8 elections after the retirement of former chief justice of Pakistan (CJP) Qazi Faez Isa.

Even Defence Minister Khawaja Asif had consistently expressed concerns about the possibility of an audit of the 2024 elections after Justice Isa's retirement.

Before the retirement of former CJP Umar Ata Bandial, the PML-N led government had issued the notification of Justice Isa as the next CJP. However, it did not issue a similar notification for the senior puisne judge, Syed Mansoor Ali Shah, ahead of Isa's retirement in October last year.

Instead, it waited for the passage of the 26th Constitutional Amendment, which stipulated that the CJP would be appointed from among the three senior-most SC judges by a parliamentary committee.

Eventually, the government members in the committee supported the nomination of Justice Yahya Afridi as the new CJP. He was third in the Supreme Court's seniority list.

There was no explanation as to why Justice Shah was being ignored by the committee.

However, legal experts believe that the executive has succeeded in exerting influence over judicial decision-making following the 26th Constitutional Amendment. Even the present government has obtained relief in three crucial cases from the CBs of the apex court.

The CBs endorsed the trial of civilians in military courts and the transfer of judges to the Islamabad High Court. Another CB overturned the Supreme Court's July 13 judgment in the reserved seats case. As a result, the government managed to secure a two-thirds majority in the National Assembly.

During his arguments, Akram Sheikh suggested to the bench that an order should be passed for the constitution of a 24-member full court to hear the petitions against the 26th amendment.

Sheikh stated that the present CB, which itself is a creation of the 26th Constitutional Amendment, could not hear this case. He argued that the CB is not a separate court like the Federal Shariat Court; rather, it is a bench of the Supreme Court itself.

The judges sitting on this bench are members of the Supreme Court of Pakistan as well as members of CB. They are, in a way, wearing two hats—one in their capacity as judges of the Supreme Court and the other as members of CB.

In their capacity as members of CB, it is logically and legally impossible for them to declare the 26th Amendment void. Such a declaration can only be issued by a court of competent jurisdiction.

If the 26th amendment is held void, then the very foundation upon which the bench has been constituted would collapse. If the amendment itself is void, then the constitution of the bench pursuant to it is also legally ineffective.

In that case, the very source of the bench's judicial authority would cease to exist, rendering the CB devoid of legitimate existence in the eyes of the law. The bench, he said, "cannot possibly cut the very branch on which it is sitting."

Therefore, the only "hat" available to the court for issuing an effective declaration and providing a remedy is that of the Supreme Court judges. The other hat, he said, would "dissolve into thin air''.

"Fortunately, the members of the bench would still retain their heads, but not their hats," Sheikh remarked. "Therefore, the only institution capable of upholding the principle of 'Ubi jus ibi remedium' is the Supreme Court as an institution, and not its CB."

He also posed the question of whether Parliament could abolish the judiciary, which is one of the salient features of the Constitution. He said the entire justice system rests on the foundational principle expressed in Latin as "Ubi jus ibi remedium"—where there is a right, there is a remedy.

"If the benefit of a right is denied to any person, then the ultimate institution to determine the validity of such a claim is the judiciary in Pakistan. The Supreme Court of Pakistan is the apex institution vested with this judicial power," he concluded.