Pakistan’s Supreme Court Addresses Constitutional Amendment Controversy
On October 9, the Supreme Court of Pakistan took a significant step in addressing petitions challenging the 26th Constitutional Amendment. The court directed the presentation of a list of full courts that had been constituted in the past. This decision came during a hearing involving a large bench of eight justices, including Justice Aminuddin Khan, who presided over the proceedings.
The bench included notable members such as Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Ayesha Malik, Justice Hassan Azhar Rizvi, Justice Musarrat Hilali, Justice Naeem Akhtar Afghan, and Justice Shahid Bilal. Their collective presence underscored the gravity of the matter at hand.
During the session, Justice Aminuddin emphasized the importance of the Constitution, stating that it remains in effect unless amended by the court. This observation set the tone for the discussion, which revolved around the implications of the 26th Amendment on judicial independence.
Legal Arguments and Concerns
Senior lawyer Hamid Khan, representing the Lahore High Court Bar Association, raised several concerns regarding the 26th Amendment. He argued that the amendment was passed in the Senate under questionable circumstances, specifically during late-night hours. According to him, the amendment altered the balance of power within the Judicial Commission, shifting the majority from judges to administrative representatives. This change, he contended, undermined the judiciary’s independence.
Hamid Khan further requested that the case be heard by a full court, emphasizing that the amendment directly impacts judicial powers. He pointed out that when the amendment was enacted, there were still eight additional judges serving on the Supreme Court, suggesting that a full court of all sixteen judges should be convened.
Justice Jamal Mandokhail responded by stating that the immediate question was not about the amendment’s correctness but rather its current status as part of the Constitution until it is struck down by the court. This remark highlighted the procedural nature of the current hearing.
Judicial Authority and Constitutional Provisions
Justice Muhammad Ali Mazhar questioned the authority of the Supreme Court to form a full court, noting that the 26th Amendment had introduced a parliamentary committee into the Judicial Commission. This raised important questions about the scope of judicial power and the potential conflicts arising from the amendment.
Justice Ayesha Malik, however, maintained that there was no restriction on forming a full court under the 26th Amendment. She suggested that the court could exercise this power through a judicial order. Hamid Khan supported this view, citing Article 187 of the Constitution and referencing previous instances where full courts had been constituted.
Justice Mandokhail posed a critical question: “If we accept your proposal and make all judges part of the constitutional bench, will you be satisfied then?” This inquiry reflected the court’s cautious approach to the issue.
Justice Aminuddin added another layer of complexity by asking, “If the existence of the constitutional bench itself is nullified, then who will decide the Supreme Court cases?” This question underscored the potential consequences of any decisions made regarding the composition of the bench.
Historical Context and Procedural Considerations
Justice Naeem Afghan noted that the Practice and Procedure Act did not exist in the past, and the authority to form benches now rests with the constitutional committee rather than the Chief Justice alone. This historical perspective provided context for the current debate.
The court clarified that the current arguments were focused solely on the request for constituting a full court. The main case regarding the constitutional validity of the 26th Amendment would be addressed at a later date. Justice Aminuddin remarked that discussions on this preliminary issue might continue for a month before the bench to hear the case is finalized.
Next Steps and Implications
Advocate Hamid Khan is scheduled to submit the record of previously constituted full courts on Thursday. This submission will provide valuable historical data that could influence the court’s deliberations.
As the proceedings unfold, the implications of the 26th Amendment remain a central concern. The Supreme Court’s handling of this matter will have far-reaching effects on the balance of power within the judiciary and the interpretation of constitutional provisions. The ongoing dialogue between the court and legal representatives highlights the complexity of constitutional governance and the importance of maintaining judicial independence.
