ISLAMABAD:
Supreme Court judge Jamal Khan Mandokhail has said he cannot understand how an article of the Constitution, Article 191-A, can be ignored while hearing the petitions challenging the 26th Constitutional Amendment.
Article 191-A, introduced by the 26th Constitutional Amendment, outlines a new process for the Supreme Court’s practice and procedure, particularly concerning the constitution of benches.
“How any constitutional article be sidelined?” Justice Manokhail, who is a part of an eight-member constitutional bench (CB) of the Supreme Court hearing petitions filed against the amendment, said on Tuesday.
Justice Ayesha Malik, however, noted that there are legal precedents in this regard. “There are judicial precedents explaining the process when a provision itself is under challenge,” she said. Justice Manokhail said the counsels of the petitioners should rather give a reply to his question.
On Tuesday, the CB, headed by Justice Amin-ud-Din Khan, heard the petitions against the amendment. At the outset, the court noted that due to internet connectivity issues, the livestream of the proceedings could not go on air.
During the hearing, Abid Zuberi, counsel for the petitioners, argued that a party cannot object to a particular judge, as the decision to hear or not hear a case lies with the judge. He requested that a full court comprising judges appointed before the constitutional amendment be constituted.
Justice Mandokhail pointed out the inconsistency, remarking, “On one hand, you ask for a full court; on the other, you say only sixteen judges should hear the case. Please clarify your request.”
Referring to the Practice & Procedure Act (PAPA) case, Zuberi argued that with the present eight-member bench, the petitioners would not have a right of appeal.
Justice Ayesha Malik observed that the right of appeal now lies within the Judicial Commission of Pakistan, which can choose to nominate additional judges to grant this right—or withdraw it if it wishes. She said, “This is directly a matter of judicial independence.”
Zuberi stated that the Supreme Court Rules 2025 have been notified, and under Order 11, a three-member SC committee has the power to constitute benches. Justice Mandokhail noted, however, that “nowhere in those rules is it written that the CJP alone will form benches.”
