By Staff Reporter
ISLAMABAD: A justice on Pakistan’s Supreme Court questioned on Monday whether litigants have the right to demand a specific bench to hear their cases, as the court’s eight-judge constitutional panel weighed challenges to a recent amendment that has reshaped the judiciary’s structure and powers.
The remarks by Justice Jamal Khan Mandokhail came at the start of proceedings in a high-stakes hearing on the 26th Constitutional Amendment, which has drawn sharp criticism from lawyers and opposition figures for altering how judges are appointed and cases are assigned. The amendment, passed last year, established a new framework for constitutional benches and shifted some authority from the chief justice to a judicial commission.
“Whether the CB has the authority to completely change the present composition of the bench, or any party can take advantage by deciding benches consisting of particular judges by removing the existing ones,” Justice Mandokhail asked, addressing Abid Shahid Zuberi, a senior counsel representing former presidents of the Supreme Court Bar Association, who are among the petitioners challenging the amendment.
The eight-judge bench, headed by Justice Aminuddin Ahmed, is considering 36 petitions that question the amendment’s validity. The session highlighted tensions over the court’s composition, with Zuberi arguing that the case should be heard by a full court of judges who were in office before the amendment took effect.
Zuberi acknowledged that no party has the right to request a bench of its choice but cited the Supreme Court’s 1998 decision in the Malik Asad Ali case, where a matter was referred to a junior judge after the chief justice and senior puisne judge recused themselves. He noted that the current constitutional bench consists of 15 judges against a sanctioned strength of 24, with eight elevated after the amendment’s passage. Therefore, he contended, the case should go before a full court of the 16 judges who predated the changes.
Justice Mandokhail recalled that in an earlier case, when Justice Umar Ata Bandial was chief justice, Zuberi had opposed forming a full court. “Why should a full court consisting of all 24 judges not be formed to hear the present challenges to the 26th Amendment?” the justice asked .
Justice Naeem Akhtar Afghan interjected, observing that “whether we like it or not, Article 191A exists in the Constitution a provision in which the concept of a full court is alien.” He emphasised that precedents cited by Zuberi predated both the Practice and Procedure Act — under which a three-judge committee handles case assignments — and the 26th Amendment, which requires constitutional matters to be decided by the constitutional bench.
Given that setup, Justice Afghan asked how the chief justice could nominate judges for a full court when the Judicial Commission of Pakistan had not selected them for the constitutional bench. “Don’t you consider that the present eight-judge CB fulfils the criteria and requirements of the Constitutional Bench?” he inquired.Mr. Zuberi insisted that only pre-amendment judges should hear the case, given that the amendment’s validity is at issue.
Justice Ayesha A. Malik noted that the chief justice was appointed before the amendment and could thus sit on a full court. But Justice Mandokhail countered that the constitutional bench could not direct the chief justice to form such a court, as he has a direct interest after being appointed under the amended system. Similarly, he said, the senior puisne judge, Justice Syed Mansoor Ali Shah, could not participate because he is aggrieved over not being elevated to chief justice. “If the present eight judges can-not hear the case, then who will?” Justice Mandokhail asked.
Justice Aminuddin Khan pressed Zuberi to explain how the current bench members were beneficiaries of the amendment, pointing out that serving on the constitutional bench merely increases their workload. He framed the core issue as how the bench could grant jurisdiction to other judges who lack it in this matter.
“Will we become biased when we sit in the CB?” Justice Mandokhail asked, also questioning who would resolve objections to the bench’s composition. He added that the committee under the Practice and Procedure Act lacks authority to form a full court. Justice Malik observed that Article 191A refers to benches, not a full court. Justice Muhammad Ali Mazhar added that under Article 191A, “we, the judges, are members of the CB,” and asked, “Can we include or pass any order that judges who are not members be added to the CB?” “What type of judicial order do you seek?” Justice Mazhar asked, as Justice Malik pressed Zuberi to cite any prohibition on the bench issuing such an order.
When it was suggested that the chief justice, as a beneficiary, could not sit, Justice Mazhar remarked that the counsel appeared to want the matter referred to the senior puisne judge to constitute a full court. Zuberi clarified that the issue should first go to the chief justice, and if he declines, then to the senior puisne judge in order of seniority, following the Malik Asad Ali precedent. He argued that the chief justice retains the authority to form a full court.
Justice Mandokhail then asked Zuberi to define a full court. The counsel replied that the Malik Asad Ali case defined it as all available judges. Justice Malik noted that the majority opinion in the Practice and Procedure case held that a full court was necessary for collective wisdom when the matter concerns the Supreme Court itself. She said the opinion thus recognises the convention of a full court and distinguishes it from a bench. The hearing underscores broader debates over judicial independence in Pakistan, where amendments to the Constitution have often sparked legal battles and political divisions. The court adjourned without a decision, with arguments set to continue.
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