Petitions challenging 26th Amendment: Justice Mansoor asks CJP to constitute full court

ISLAMABAD: The Supreme Court’s Senior Puisne Judge Syed Mansoor Ali Shah Thursday wrote to the Chief Justice of Pakistan (CJP) Yahya Afridi to convene the Full Court and direct the registrar to fix the pending petitions challenging the 26th Amendment for hearing.

In a letter, Justice Mansoor further requested that the Judicial Commission’s meeting be postponed until those petitions were decided by the Full Court and until the commission made its rules of procedure under Article 175A(4) of the Constitution.

“I have received the letters dated 23 November 2024, regarding convening of the meetings of the Judicial Commission of Pakistan, constituted under the 26th Constitutional Amendment, on 6 December 2024 to consider nominations for the appointment of Additional Judges of the High Court of Sindh and Peshawar High Court,” Justice Shah wrote.

Expressing his reservations and objections to the holding of the said meeting, Justice Mansoor intimated to the chief justice that the current commission had been restructured under the 26th Amendment. The senior puisne judge said the very constitutional validity of the said constitutional amendment had been challenged in the Supreme Court by numerous petitioners from diverse segments of society adding that over two dozen petitions were currently pending with the Supreme Court in this regard.

Justice Mansoor further said while the outcome of this challenge remained uncertain (it may fail or succeed), a verdict invalidating the constitutional amendment would render any actions or decisions taken by this new commission, particularly including nominations for the appointments of additional judges in various high courts, null and void.

“Such an eventuality could cause a serious embarrassment to the institution and the individuals involved, as was witnessed following the Supreme Court’s decision in the Sindh High Court Bar Association case,” he wrote adding that it will not only embarrass and weaken the institution but also lead to a significant waste of public resources and time.

He further said all this could be avoided by hearing and deciding the petitions challenging the 26th Constitutional Amendment by the Full Court of the Supreme Court, so that the question mark on the legitimacy of this commission was resolved once and for all.

“Further, appointments of additional judges in various High Courts by such commission, whose constitutional validity and legitimacy was under question, will cast shadows over the moral authority of these appointments and generate mistrust and weaken public confidence in the judiciary of Pakistan,” Justice Mansoor Ali Shah maintained.

To avert such anomalies, he informed the chief justice that Justice Munib Akhtar and he, as the majority members of the then committee under the Supreme Court (Practice and Procedure) Act 2023, resolved on 31st October 2024 to fix the petitions challenging the 26th Constitutional Amendment for hearing before the Full Court of the Supreme Court. However, despite this decision, those petitions had not yet been fixed for hearing by the registrar before the Full Court and they never received any response from his good-self.

Justice Mansoor further intimated to the chief justice that the commission had gone ahead and nominated judges for the Constitutional Benches of the Supreme Court and Sindh High Court without any criteria and parameters for assessing and evaluating their expertise in constitutional law. “These nominations have been made on the strength of sheer voting power enjoyed by the executive in the commission by virtue of 26th Constitutional Amendment, and lack any justifiable reason or logical basis,” Justice Mansoor Ali Shah wrote adding that the minutes of the meetings, which were not being made public, did not give any reason for such nominations.

The senior puisne judge further said the prime function of the commission was to appoint judges to the constitutional courts of the country and the decisions of the commission in performance of this function were, therefore, of paramount public importance, still its minutes are not being made available to the people of Pakistan when Article 19A of the Constitution mandates that every citizen shall have the right to have access to information in all matters of public importance, subject to any reasonable restriction imposed by law.

He further said freedom of information was vital for ensuring transparency and accountability, particularly in institutions tasked with upholding justice and public trust adding that releasing the minutes of the meetings of the Judicial Commission where judges were appointed to constitutional courts enhanced public confidence in the judiciary.

He further requested that the meeting of the newly constituted Judicial Commission of Pakistan may please be postponed until those petitions were decided by the Full Court and until the commission made the rules of its procedure under Article 175A(4) of the Constitution.

Meanwhile, PMLN Parliamentary Leader in the Senate and Chairman Senate’s Foreign Affairs Committee Senator Irfan Siddiqui Thursday questioned whether any article of the Constitution could be removed through any argument in the courts on any ground. Writing on his ‘X’ handle, Siddiqui said, “Article 239 of the Constitution grants Parliament unlimited authority to amend the Constitution.”

Referring to a letter written by Justice Mansoor Ali Shah to the Chief Justice of Pakistan, he said, “Your Honor, I highly respect your opinion that the court can either approve or disapprove the 26th Constitutional Amendment. However, the Constitution of the Islamic Republic of Pakistan also contains Article 239 (5), which clearly and unequivocally states that no constitutional amendment, on any grounds, regardless of what they are, can be debated in any court.”

He stated that Article 239 (6) of the Constitution gives parliament unlimited power to make any constitutional amendment. The senator questioned, “Whether you suspended, paralysed, or declared these clauses of the Constitution unconstitutional? If not, under what authority can the 26th Amendment be brought into discussion?” He further stated that Pakistan had already paid a heavy price for judicial overreach. “If the Constitution is supreme, then please allow it to remain supreme,” he stated.