Justice Aminuddin to head Pakistan’s first constitutional bench

ISLAMABAD: The Judicial Commission of Pakistan (JCP) on Tuesday approved the formation of a seven-member constitutional bench headed by Justice Aminuddin Khan.

The first meeting of the Judicial Commission was held here in the Supreme Court presided over by the newly appointed Chief Justice of Pakistan Yahya Afridi. It was also attended by senior judges including Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Aminuddin Khan, Attorney General Mansoor Usman Awan, Law Minister Azam Nazir Tarar and representative of Pakistan Bar Council Akhtar Hussain. Five parliamentary members, including PPP’s Farooq H Naek, PMLN’s Aftab Ahmed, PTI’s Shibli Faraz and Omar Ayub Khan and NA Speaker’s nominee on women seats Roshan Khursheed Bharucha, also attended the meeting.

After thorough deliberations, the Judicial Commission by a 7-5 majority decision approved the formation of a seven-member constitutional bench to be headed by Justice Aminuddin Khan. Attorney General Mansoor Usman Awan, Law Minister Azam Nazir Tarar and representative of Pakistan Bar Council Akhtar Hussain, Farooq H Naek Naik, Aftab Ahmed and Roshan Khurshid Bharucha, voted in favour of the head of the bench. Whereas Chief Justice of Pakistan Yahya Afridi, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, PTI’s Shibli Faraz and Omer Ayub opposed the majority decision.

After becoming the head of the Constitutional Bench, Justice Aminuddin Khan has also become a member of the Supreme Court Practice and Procedure Committee. Under the Practice and Procedure Amendment Act, the head of the constitutional bench shall become the third member of the committee. The remaining members of the committee are Chief Justice Yahya Afridi and senior Judge Mansoor Ali Shah. Likewise, sources revealed that as the commission approved Justice Aminuddin Khan as the head of the Constitutional Bench, Justice Jamal Khan Mandokhel has also become a member of the Judicial Commission of Pakistan, thus completing the composition of a 13-member commission.

Meanwhile, a press release issued by Jazeela Aslam, Secretary of the Commission, stated that during the meeting, Umar Ayub objected to the quorum of the commission highlighting the absence of one member. The objection was later put to a vote and by majority, the meeting affirmed that the proceedings agree with the Constitution and can continue in the absence of one member. “The commission discussed the establishment of a dedicated secretariat to support and perform its functions and, after thorough consideration, the commission authorised the chairman to proceed with its rulemaking and establishment,” says the press release. The commission also considered the formation of a Constitutional Bench within the Supreme Court to consider the constitutional matters/cases.

“The Chief Justice expressed the views of the judges on the Constitutional Bench under Article 175(A) of the Constitution and suggested a certain duration for the bench. Other participants also expressed their views on the matter which was considered and thoroughly debated,” the press release added.

Following the vote, the majority (7 out of 12) approved a seven-member Constitutional Bench with representation from all the four provinces for a term of two months, comprising Justice Aminuddin Khan (Chairman), Justice Jamal Khan Mandokhel, Justice Muhammad Ali Mazhar, Justice Ayesha A Malik, Justice Syed Hasan Azhar Rizvi, Justice Musarrat Hilali and Justice Naeem Akhtar Afghan. This initial session of the reconstituted Judicial Commission marks a procedural step in advancing the functions of the commission under the new framework provided by the 26th Constitutional Amendment.

In a related development, senior puisne judges of Supreme Court Justice Syed Mansoor Ali Shah and Justice Munib Akhtar requested Chief Justice of Pakistan Yahya Afridi to fix, during the current week before the full court, scores of petitions challenging the 26th Constitutional Amendment.

In a letter dated November 4, 2024 to the Chief Justice of Pakistan, the chairman of the committee requested the convening of a meeting of the committee to urgently consider the fixation and hearing of the constitutional petitions challenging the recently enacted 26th Amendment to the Constitution.

Keeping in view the urgency of the matter, they had asked for the meeting to be held at the earliest on that day itself under the proviso to Section 2(2) of the Act. “Despite intimation, the meeting was not convened, therefore, considering the urgency of the matter, we proceeded under section 2(2) of the Act and held the requisitioned meeting of the committee on the same day,” they intimated the CJP. They further said that the decision of the committee, which was promptly communicated on the same day and is binding and effective in terms of section 2(3) of the Act, was that the constitutional petitions challenging the 26th Constitutional Amendment be placed before the Full Court (on the judicial side) and fixed for hearing on 4th November 2024. “It is with deep concern and regret that we note that no cause list of the Full Court in the matter of the above constitutional petitions has been issued for 4th November 2024,” Justice Mansoor and Justice Munib Akhtar maintained.

They held that the decision of the committee, which continues to stand, has to be given effect. “We are therefore constrained to require the fixation of the aforementioned constitutional petitions before the Full Court positively during the current week, and for the cause list to be issued accordingly forthwith,” Justice Mansoor and Justice Akhtar stressed. “In line with the established practice sanctioned by the earlier decision of the committee, the Registrar is directed to upload the decision of 31st October 2024 on the website of the Supreme Court,” the two senior judges concluded.

Meanwhile, yet another petition challenging the 26th Constitutional Amendment was filed jointly by Ahmed Khan, Leader of the Opposition in the Punjab Assembly, Muhammad Azhar Siddique and Munir Ahmed, advocates, under Article 164(3) of the Constitution, making the Federation through the Ministry of Law and Justice and chief secretaries of the four provinces as respondents.

The petitioner prayed the apex court to declare that the 26th Consitutional Amendment abrogates, repeals and destroys the basic features of the Constitution and therefore is non-est factum, void ab initio and in violation of fundamental rights as enshrined in the Constitution. They further prayed the apex court to declare that the amendment, specifically sections 7, 10, 12, 13, 14, 17 along with other any provisions ibid amending the Constitution, are ultra vires and violate the salient features and fundamental rights enshrined in the Constitution and therefore unconstitutional.

They further prayed that the new Judicial Commission constituted by the recently amended Article 175-A of the Constitution be prevented from holding any meeting taking any action or passing any order. They also prayed to set aside any action taken by the respondents, their agents, assigned employees and any other person of authority acting on behalf of the respondents or any other entity in pursuance of the 26th Constitutional Amendment.

Likewise, they prayed the court to declare the separation of powers and independence of the judiciary and its powers and functions to enforce the fundamental rights be as sacrosanct under the Constitution and beyond the power and competence of the parliament to withdraw, interfere or tamper with in any manner whatsoever and suspend the operation of the amendments sought to be introduced through the 26th constitutional amendment.