ISLAMABAD: The Supreme Court on Tuesday received two requests for early hearing of 26th Amendment challenges by the full bench comprising all its judges.
The first application was filed by Afrasiab Khattak through his lawyer Khwaja Ahmad Hosain, urging the court to direct its registrar to fix the petition for hearing before the full court as previously decided in accordance with law or, alternatively , refer the petition to the full court to determine an appropriate forum to exercise jurisdiction with respect to the issues raised in the petition.
The other plea was filed by Advocate Taufiq Asif requesting that the petitions challenging the 26th Amendment be disposed of at the earliest in the interest of justice.
Mr. Khattak argues that the 26th Amendment did not prevent the full court from hearing cases under Article 184(3). There is a clear distinction in the Constitution between the full court and the courts, he said, adding that The Constitution clearly distinguishes between “the courts” and the entire court.
Requests seek early hearing of appeals
To hold that the full court has no jurisdiction would amount to eroding the distinction between the full court and the tribunal. This would be erroneous, the application said.
The petitioner alleged that the 26th Amendment had created the constitutional court and added that if the challenge to the amendment was successful, the constitutional court would cease to exist.
The lawsuit argued that the Constitutional Chamber cannot decide the vires of the same instrument that created it, adding that it would also constitute a conflict of interest since the success of the titled petition would mean that this Chamber would no longer exist.
The constitutionality and legality of this constitutional court have been questioned, and effectively a contesting forum would be determining its own legality, which would not be legal or fair, the petition said.
It is a fundamental principle of justice that it must not only be done, but must be manifestly seen to be done. The perception that would be created is that the constitutional court would be judging itself.
The federation supported the 26th Amendment and it was introduced and supported by the government. It is common knowledge that this constitutional court has been appointed through the votes of the government members of the Judicial Commission of Pakistan (JCP), the petitioner noted.
The government is an interested party. The executive would lose its hold on the new PCJ if the 26th Amendment was repealed, the petitioner said, adding that the executive would also lose its ability to select the chief justice if this amendment were repealed.
The control given to the executive over judicial affairs and internal judicial functioning has been expressly questioned. Therefore, this would further create the perception that a government-appointed and sanctioned court is determining a case in which the government has taken a strong position in favor of the 26th Amendment, according to the petition.
To ensure the credibility and legitimacy of the Supreme Court and its decisions, petitions must be listed before the full court. The petition said the present case has profound implications for judicial independence, fundamental rights and ultimately the future course of the nation’s constitutional regime.
Published in Amanecer, January 8, 2025.
