SC urged to let full court hear challenges to 26th amendment
ISLAMABAD: The Supreme Court on Tuesday received two requests seeking early hearing for the challenges to the 26th Amendment by the full court comprising all its judges.
The first application was filed by Afrasiab Khattak through his counsel Khwaja Ahmad Hosain, which urges the court to order its registrar to fix the petition for hearing before the full court as has been previously decided in accordance with law or, as an alternative, refer the petition to the full court to determine an appropriate forum for exercising jurisdiction regarding the matters raised in the petition.
The other plea was filed by Advocate Taufiq Asif requesting that the petitions challenging the 26th Amendment should be fixed as early as possible in the interest of justice.
Mr Khattak pleads that 26th Amendment did not bar the full court from hearing the cases under Article 184(3). There is a clear distinction in the Constitution between the full court and the benches of the court, he said, adding that Constitution clearly distinguishes between ‘benches’ and the entire court.
Applications seek early hearing of appeals
To hold that full court did not have jurisdiction would be tantamount to eroding the distinction between the full court and the bench. This would be erroneous, the application said.
The petitioner pleaded that the 26th Amendment had created the constitutional bench, adding that if the challenge to the amendment succeeded then the constitutional bench will cease to exist.
The application contended that the constitutional bench cannot decide the vires of the very instrument that has created it, adding that it would also constitute a conflict of interest as the success of the titled petition would mean that this bench would no longer exist.
The constitutionality and legality of this constitutional bench has been challenged, and effectively a disputed forum would be determining its own legality, which would neither be lawful nor would it be just, it application said.
It is a fundamental principle of justice that it must not only be done but manifestly be seen to be done. The perception that would be created is that the constitutional bench would be sitting in judgement over itself.
The federation has supported the 26th Amendment and it was tabled and supported by the government. It is in the public domain that this constitutional bench has been nominated by votes of government members on the Judicial Commission of Pakistan (JCP), the applicant pointed out.
The government is an interested party. The executive would lose its dominance on the new JCP if the 26th Amendment is struck down, the applicant said, adding that the executive would also lose its ability to select the chief justice if this amendment is struck down.
The control given to the executive with respect to judicial matters and internal judicial functioning has been expressly challenged. Therefore, this would further create the perception that a government-sanctioned and government-nominated bench is determining a case in which the government has taken a strong position in favour of the 26th Amendment, the application said.
To ensure the credibility and legitimacy of the Supreme Court and its decisions, the petitions must be listed before the full court. The application said the present case has profound implications for judicial independence, fundamental rights, and ultimately the future course of the nation’s constitutional dispensation.
Published in Dawn, January 8th, 2025