ISLAMABAD: The Supreme Court Monday issued notices to the parties in the identical petitions against the 26th Amendment and adjourned the hearing for three weeks.
An eight-member constitutional bench — headed by Justice Amin-ud-Din Khan — heard scores of identical petitions, challenging the amendment. Pakistan Tehreek-e-Insaf (PTI), Jamaat-e-Islami (JI), Sunni Ittehad Council (SIC) as well as bar associations and former presidents of the Supreme Court Bar Association (SCBA) had challenged the amendment. The other members of the bench comprised Justice Jamal Khan Mandokhel, Justice Muhammad Ali Mazhar, Justice Aisha A. Malik, Justice Syed Hassan Azhar Rizvi, Justice Musarrat Hilali, Justice Naeem Akhtar Afghan and Justice Shahid Bilal Hassan.
The constitutional bench also issued notices to the parties on the pleas seeking formation of full court as well as live broadcast on the instant matter. The counsel for the petitioners, including Hamid Khan, Faisal Siddiqui and others, requested formation of a full court bench to hear the case. Justice Jamal Khan Mandokhel, however, observed that the full court bench could not be constituted as per wishes of the counsel. He further observed that the Judicial Commission of Pakistan nominated the constitutional bench judges saying the three-member committee of the constitutional bench decided on the fixation of cases related to the constitutional matters
Addressing the petitioner’s counsel, Justice Muhammad Ali Mazhar observed that they (lawyers) were confused on the matter of full court bench, asking them to consider the constitutional bench as a full court. The counsel for the petitioners, however, pleaded for constituting a full court comprising all judges of the Supreme Court.
At this, Justice Muhammad Ali Mazhar observed that it was not possible and made it clear that the constitutional matter will only be heard by the constitutional bench. Justice Ayesha A Malik remarked that there was no ban on forming a full court adding that in the past, requests were made for full court.
Similarly, Faisal Siddiqui Advocate contended that the 26th Amendment was against the principle of separation of powers. Similarly, another counsel for one the petitioners contended that at the time of approval of the amendment, the House was incomplete.
At this, Justice Jamal Khan Mandokhel inquired whether voting for the amendment was done on the total members or on the available members. Faisal Siddiqui Advocate replied that the voting was done on the available members, on which Justice Jamal Mandokhel told him that the total number of available members was enough to meet the two-thirds of the full House. Justice Ayesha A. Malik asked the counsel for the petitioner whether the representation of all the provinces in the House was complete.
The counsel replied that the representation of Khyber Pakhtunkhwa Province in the Senate was not complete, because the Senate elections were yet to be held to the extent of Khyber Pakhtunkhwa.
Barrister Salahuddin, counsel for another petitioner, submitted that Akhtar Mengal in his petition had drawn the map of the 26th Amendment.
“How free were the members of the assembly to vote should also be taken into account,” Salahuddin contended. Justice Ayesha observed that the decision of reserved seats had not been implemented yet to which Salahuddin Advocate submitted that a point of reserved seats had also been raised in the petition.
Shahid Jameel, another counsel for one of the petitioners, submitted that only the real representatives of the people had the power to amend the Constitution. At this, Justice Muhammad Ali Mazhar asked the counsel whether they wanted that the bench should wait for the decisions of the cases related to the elections first and then the constitutional amendment.
In that case, this case relating to the constitutional amendment will hang on for years,” Justice Mazhar remarked. Later, the constitutional bench adjourned the hearing for three weeks after issuing notices to the parties.
