SC bench hears arguments against 26th constitutional amendment

ISLAMABAD: The eight-member bench of the Supreme Court heard petitions against the 26th Constitutional Amendment, presided over by Justice Aminuddin Khan.

At the beginning of the hearing, the lawyers of the petitioners requested the formation of a full court. Justice Jamal Khan Mandokhail said that a full court cannot be formed as per your wishes right now. “The Judicial Commission nominates judges to the Constitutional Bench,” Justice Mandokhail said, adding that all the judges nominated by the Judicial Commission for the Constitutional Bench are part of this bench.

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“The Judicial Commission nominates judges, while the scheduling of cases is done by a three-member committee,” Justice Mandokhail said, adding, “The head of this committee is Justice Aminuddin Khan. Justice Muhammad Ali Mazhar and I are included in the committee.”

Justice Mazhar, addressing the petitioners’ lawyers said, “You yourself are confused about the issue of full court. You should consider this bench as a full court.”

The lawyers reiterated the demand that a full court should be formed on all the judges present in the Supreme Court. “It is not possible, only the constitutional bench will hear the constitutional matter,” Justice Mazhar responded.

Petitioner Afrasiab Khattak’s counsel presented the arguments, saying, “In the 26th Constitutional Amendment, the independence of the judiciary was abolished. Article 239 says that a two-thirds majority is required in both houses. It is also a fact that some members were forced to vote.”

“Will you go on presumption?” Justice Mandokhail asked. “If someone has been forced to vote, they should go to the relevant forum,” Justice Mazhar added.

Counsel of another petitioner, Sunni Ittehad Council (SIC), said that, “While passing the 26th Constitutional Amendment, the [quorum of] members in both the houses was not complete.”

“This amendment is a violation of Article 239 of the Constitution,” the counsel added.

Justice Mandokhail inquired, “How many people were present when the amendment was being made?” The lawyer responded that the number of parliamentarians that were present was less than the required number, adding, “The voting was done in the absence of 11 senators from Khyber Pakhtunkhwa.”

Justice Ayesha Malik gave her opinion, saying “There is no restriction on forming a full court.”

Lawyer Faisal Siddiqui said, “The 26th Amendment is against the principle of separation of powers.” Lawyer Uzair Bhandari added, “The House was incomplete at the time of approval of the 26th Amendment.”

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Justice Mandokhail inquired again, “Was the voting on the 26th Amendment based on the total members or on the available members?”

Lawyer Siddiqui replied, “Voting was based on the available members.”

Justice Mandokhail asked, “Does the total of the available members meet two-thirds of the full House?”

Faisal Siddiqui responded, “[The government] had already completed the count, we are not raising the issue.”

Justice Malik asked, “Were all the provinces fully represented in the House?”

The lawyer answered that Khyber Pakhtunkhwa’s representation in the Senate was not complete. “Senate elections were held to the extent of Khyber Pakhtunkhwa,” he added.

Barrister Salahuddin said in his comments that a map of the amendment conditions has been drawn in the petition of Balochistan National Party (BNP) leader Akhtar Mengal. He raised the question of the freedom of choice of the members who voted in the assembly. “How free were the members of the assembly to vote?” Salahuddin said.

Justice Malik said, “The decision on reserved seats was also not implemented.”

Barrister Salahuddin added, “A point of reserved seats has also been raised in the petition.”

Advocate Shahid Jamil said, “Parliament has the power to amend because only the real representatives of the people have the power to amend the constitution.”

Justice Mazhar said, “You want to wait for the decisions of the election cases first and then hear this case?” adding, “This way, this case will remain pending for a long time.”

After hearing the lawyers’ comments, the court issued notices to all parties concerned in the 26th Constitutional Amendment case. The hearing of the case was then adjourned for three weeks.