ISLAMABAD
Hearing of petitions against 26th constitutional amendment has been adjourned till today (Tuesday) in Supreme Court (SC) constitutional bench.
SC bench members have not found answer in the arguments of lawyers and process of questioning from them that this pending case in constitutional bench should be sent to regular full court bench under article 184 (3) of the constitution how. Order be issued to Chief Justice of Pakistan (CJP) or to judges committee. Will all the judges sit in full court or the judges prior to 26th constitutional amendment will have to sit to hear this case.
Justice Amin ud Din Khan head of constitutional bench remarked not a single lawyer has given reply in accordance with the constitution. Question is this how should a judge of unconstitutional bench be made part of constitutional bench. First of all we have to decide about bench. We have talked about all the world but we have not said a single word about constitutional bench. You say this bench cannot hear . Suppose we have accepted your plea. We will stand up from here and sit in full court. Tell us who will issue order for full court. Who will constitute full court.
A larger bench of SC constitutional bench presided over by Justice Amin ud Din Khan took up for hearing the petitions filed against 26th constitutional amendment Monday.
Justice Shahid Bilal remarked this 8-member bench cannot nullify 26th constitutional amendment. To your view which bench can do it.
Counsel Akram Sheikh said SC has to decide with reference to this amendment. My objective is very clear as being lawyer and Pakistani citizen I want ambiguities be allayed. We have to go ahead as per principles of Quaid-e-Azam and constitution of Pakistan. I want the whole SC will have to sit together to decide about independence of judiciary.
Justice Amin ud Din Khan said tell us some constitutional passage for constitution of full bench. We are bound to our oath. Not a single lawyer has given arguments as per constitution.
Justice Amin ud Din Khan inquired what is full court in your opinion.
Akram Sheikh replied it is futile debate. My representations are that a full court be constituted comprising all 24 judges. This constitutional bench cannot hear this case.
Justice Amin ud Din remarked question is this due to it that how a judge of unconstitutional bench should be made part of constitutional bench.
Justice Jamal Mandokhail said you say there can be 24 judges but the bench should not be called constitutional bench. It should be called SC.
Akram Sheikh said 26th constitutional amendment is a contentious amendment. Not any dictator has caused so much harm to constitution what 26th constitutional amendment has inflicted. Judges of this constitutional bench are holding two offices at present. One office is controversial and second is not. We hope Allah will give courage to you to annul this amendment.
Justice Muhammad Ali Mazhar remarked now the matter is new one. Constitutional bench has been constituted.
Now you should give arguments in accordance with new situation. You say this constitutional bench cannot nullify 26th constitutional amendment because there will be clash of interests. On the other hand full court be framed comprising all 24 judges. Will the full court comprising 24 judges be not clash of interests wherein judges of this bench will also be included.
Justice Mandokhail said the motive behind including 24 judges is they will be empowered to nullify old decision.
Akram Sheikh said you yourself have said all the judges of SC be nominated as judges of constitutional bench. What is decision of SC will be acceptable to all respondents. Impression is this the standard of independence of judiciary is not at par with international standard. One election was held in our country and some people thought scrutiny of the election will be conducted. Then a commission was formed to prevent scrutiny and accountability. In consequence of it 26th constitutional amendment came. The tale is only this but background is very vital.
Justice Jamal Mandokhail said you should present these arguments later. First of all we have to decide about bench.
Counsel Akram Sheikh said yes , I also want. I am desiring full court should be constituted All judges should sit. Then if conscience of any judge does not allow he should not sit.
Justice Amin ud Din Khan said your stance is this bench should issue order of full court comprising 24 judges.
Akram Sheikh said I adopt all the arguments of Munir A Malik.
Justice Muhammad Ali Mazhar said no one other than you have said that full court be constituted comprising 24 judges. All lawyers have talked about 16 judges.
Akram Sheikh said I too want this. But I say ahead of this let 24 judges sit. Can parliament go against salient feature of constitution. Can parliament abolish one organ of state. Can parliament go against the basic structure of the constitution.
Justice Shahid Hassan Bilal said we will see the replies to these questions in central case.
Justice Naeem Akhtar Afghan said you said you think it is your desire 24 judges should hear this case. You did not tell how your wish be materialized.
The court directed Akram Sheikh to read article 191,
The lawyer Shabbar Raza Rizvi said plea is there this case should be heard by SC. That SC should hear which is constituted by reading article 176 and 191 together.
Justice Amin ud Din remarked you have filed 2 miscellaneous petitions. only one miscellaneous is before us. Tell us before arguments how bench can pass full court order.
Lawyer Shabbar Raza Rizvi said this is issue of independence of judiciary of Pakistan. This bench will have to take pain. You are first judges of SC who were nominated for constitutional bench on the basis of this. Article 191 A will have to be read together with article 176.
Justice Muhammad Ali Mazhr said constitution is very much clear that bench other than constitutional bench can hear the constitutional matters.
Justice Jamal Mandokhail said your other colleagues say there is difference between full court and bench . Therefore they say constitution has forbidden the bench and not full court.
Shabbar Raza Rizvi said it is my request this matter be placed before SC constituted under article 176.
Justice Jamal Mandokhail said your plea is this too a full court be constituted comprising 16 judges.
Justice Ayesha Malik said SC of prior to or after 26th constitutional amendment.
Justice Muhammad Ali Mazhar said tell us should 24 judges hear or 16 judges.
Shabbar Raza Rizvi said if any judge does not want to hear personally then I have no objection.
The court adjourned hearing of the case till 11 a.m today (Tuesday).
