The Supreme Court’s constitution bench on Thursday instead of Monday heard the petitions challenging the 26th Constitutional Amendment, during which senior advocate Munir A Malik argued that the order to constitute a full court can be issued using judicial powers.
The parliament passed the amendment in an all-night session in October last year, after the PTI alleged that seven members were kidnapped to gain their support in passing the amendment. The BNP-M also claimed that pressure was exerted on two of its senators, who later opposed the party’s policy and voted in favor of the amendment.
The amendment changes the judicial powers and tenure, and it abolishes the suo motu powers of the Supreme Court, fixes the term of the Chief Justice of Pakistan for three years, and gives the power to appoint the Chief Justice to a special parliamentary committee of three senior judges. The amendment also paved the way for the formation of a Constitutional Bench, which is currently hearing the same petitions that gave rise to it.
The Constitutional Bench, headed by Justice Aminuddin Khan, includes Justices Jamal Khan Mandokhel, Muhammad Ali Mazhar, Ayesha Malik, Syed Hassan Azhar Rizvi, Musarrat Hilali, Naeem Akhtar Afghan and Shahid Bilal Hassan.
Munir A. Malik told the court that the full court existed even before the amendment, and the Constitutional Bench is a part of the Supreme Court, therefore it has the power to order the formation of a full court.
Some judges of the court raised the question of what authority the Constitutional Bench has to constitute a full court? To this, Munir Malik said that the constitutional status of the bench — whether it is a Constitutional Bench or a general bench — gives it the right to issue judicial orders.
Judge Musarat Hilali of the court took the view that the judges appointed after the amendment should not participate in the hearing of the case. Munir Malik took the view that the bench itself should decide who should be included and who should not.
Meanwhile, the court also considered whether the challenged amendment had affected the powers to constitute a full court under Article 191A.
The court has adjourned the hearing till October 13, when former SCBA president Abid Zubair will complete his arguments.
