‘Full court’ argument becomes contentious again in 26th amendment hearing

ISLAMABAD: The Constitutional Bench of the Supreme Court of Pakistan heard petitions challenging the 26th Constitutional Amendment again today.

A central point of contention in the proceedings was whether the case should be heard by a full court or a constitutional bench. Lawyer Ahmed Hussain, representing the petitioners, argued that the institution’s reputation does not hinge on the 26th Constitutional Amendment. He suggested that the case should be heard by an independent bench, a stance that led to a series of pointed questions from the bench.

Justice Jamal Mandokhail questioned the lawyer on whether he trusted the current bench, asking, “Are you not trusting the bench?” This was followed by a clarification from Justice Hassan Azhar Rizvi, who noted, “There is no word of original full court in your petition,” prompting a response from Hussain, who insisted that he was not questioning the independence of the current bench but believed the case should be heard by a different bench.

The discussion grew tense when Justice Mandokhail inquired if the judges would also be part of this proposed “independent” bench, to which Hussain confirmed that the Chief Justice would be part of it. This prompted Justice Aminuddin Khan to ask, “Will the Chief Justice be part of this independent bench?” to which Hussain replied affirmatively.

Further discussions focused on the procedural aspects of the case. The judges questioned how a decision could be made if the case was not being heard. “If we cannot hear the case, how can we give an order?” Justice Mandokhail asked.

Advocate Khawaja Hussain Ahmed also entered the fray, arguing that the newly appointed judges could still be included in the decision, though he also raised concerns about the court’s reluctance to issue an order. “Why is the court seeking a way out for an order?” Hussain asked, emphasizing that every lawyer has their own perspective on the case, which has sparked considerable debate.

In the backdrop of these exchanges, Justice Muhammad Ali Mazhar raised a key issue regarding the formation of the bench. “Should this case be heard by a constitutional bench or a full court?” he inquired. The court pointed out that the constitutional bench, regular bench, and full court were all present, with discussions revolving around whether the addition of eight more judges could turn the current bench into a full court.

“The bench will become a full court if we add eight more judges,” Justice Mazhar clarified, but also noted that if this occurred, the bench would no longer be considered a constitutional bench.

Justice Ayesha Malik instructed the lawyer to read Article 191A, which prompted further debate over the jurisdiction and powers of the current bench. “You should not abolish our jurisdiction,” Justice Jamal Mandokhail warned Hussain.

The question of how a bench is formed also loomed large, with the bench asking how the procedure has been practiced in the past. “Since when has the procedure for forming a bench been in practice?” Justice Mandokhail queried.

Lawyer Khawaja Hussain Ahmed defended his position, asserting that the Federation had been silent on the matter, and suggested that while a bench of 16 judges might be formed, it would still be considered a regular bench rather than a constitutional one.

In the end, Hussain reiterated the importance of sending the case to the full court, arguing that the current bench could not hear the case in its entirety due to the requirements of the constitutional amendment. “If the requirements of the constitutional amendment are not fulfilled, this bench cannot be formed either,” he said.

The hearing will resume tomorrow with further arguments expected from Advocate Shahid Jamil. As the legal battle over the 26th Constitutional Amendment intensifies, the future of the case hangs in the balance, with significant implications for Pakistan’s judiciary.

After these arguments, the bench adjourned the hearing until tomorrow. Advocate Shahid Jamil is set to begin his arguments in the case tomorrow.