ISLAMABAD: The Supreme Court’s constitutional bench on Wednesday heard petitions challenging the 26th Constitutional Amendment.
During the hearing, Justice Ayesha Malik raised a question saying whether the Judicial Commission is even above the Supreme Court.
An eight-member bench headed by Justice Aminuddin Khan heard the case. Lawyer Abid Zuberi completed arguments regarding objections on the constitution of the bench.
As the hearing began, petitioner Advocate Akram Sheikh made two lighthearted requests, saying the court’s proceedings should begin with “Bismillah,” as it creates a positive environment. Justice Jamal Khan Mandokhail remarked that what happened yesterday should not have happened.
Akram Sheikh further requested that time slots be allotted to counsel for arguments, saying he had been taking notes of Abid Zuberi’s submissions since Thursday “as a student.” Zuberi promptly interjected, saying, “I am not Your Honour.” Justice Aminuddin Khan then instructed that all lawyers would be bound by the time limit.
Justice Ayesha Malik observed that Article 191-A empowers the Judicial Commission to nominate judges for constitutional benches. She noted that there was no restriction on whom the commission may or may not nominate, and questioned whether the Supreme Court could direct the Judicial Commission to form a full court. “There is no bar on the Commission from issuing such an order,” she added.
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Justice Aminuddin Khan asked whether the court could order the inclusion of a judge if the Judicial Commission declined to nominate one, saying, “The Commission’s proceedings are its internal matter.”
Justice Ayesha Malik then questioned pointedly, “Is the Judicial Commission above the Supreme Court?” To this, Justice Aminuddin responded that the Supreme Court has its own powers while the Judicial Commission has its own authority.
Justice Jamal Khan Mandokhail, addressing Abid Zuberi, remarked that he was not asking for a full court but for a bench of 16 judges.
“If the Judicial Commission says it doesn’t need four of the nominated judges for the constitutional benches, would those four then file an appeal before the Supreme Court?” he asked.
Justice Ayesha Malik further asked, “If the Judicial Commission does not nominate a judge for a constitutional bench, does that mean the Supreme Court would not fulfil its constitutional responsibility?”
Justice Muhammad Ali Mazhar observed that Zuberi appeared to have modified his argument after Justice Ayesha Malik’s observations. “Earlier, you argued that the Supreme Court should issue a judicial order to include eight judges; now you are saying the court should direct the Judicial Commission,” he said.
Zuberi clarified that his position was that the Supreme Court should issue a judicial order. Justice Mazhar responded, “Then the issue of the Commission is no longer relevant.”
Justice Mandokhail remarked that the composition of constitutional benches is decided by the judges’ constitutional committee through majority vote.
Justice Musarrat Hilali questioned how the matter could be referred to the Chief Justice of Pakistan when he himself was not nominated for the constitutional bench.
Justice Hasan Azhar Rizvi noted that constitutional benches in Pakistan have existed for less than a year, asking whether there were examples from other countries dealing with similar situations.
Justice Ayesha Malik observed that if the court cannot issue an order, then a full court cannot be formed either. “If the Commission allows only five judges, then only five will sit,” she said.
Justice Naeem Akhtar Afghan remarked that the Judicial Commission not only nominates judges but also decides through voting, asking whether the court could bypass that process through a judicial order.
When Zuberi asserted that a judicial order is binding on everyone, Justice Afghan responded, “So you mean we can order the Judicial Commission?”
Justice Mandokhail said candidly, “Let me tell you the inside story — when the constitutional committee members wrote to increase the number of judges, objections were raised by those who said the committee cannot decide the number of judges.”
Justice Aminuddin noted that his stance in the Commission had been that he could propose judges’ names before it.
Zuberi argued that if a full court is constituted, there will be no right to appeal. Justice Musarrat Hilali remarked that excluding the Chief Justice and affected judges from the matter would bring it back to Justice Aminuddin.
Zuberi maintained that the Supreme Court’s powers could not be curtailed.
After Zuberi, who was representing former presidents of the Supreme Court Bar Association, concluded his arguments, Justice Aminuddin Khan noted that SCBA elections were scheduled for Friday, and the case would be resumed on Monday.
The court then adjourned the hearing of the 26th Amendment case till Monday.