A Constitutional Bank of eight judges (CB) of the Supreme Court (SC) will resume listening to a set of pleas that challenge the 26th amendment, which altered the judicial authority and tenure, and has been a ray of debate with both the opposition parties and the legal experts that question its impact on the judicial autonomy.
The amendment, which was approved by both Chambers of Parliament in October last year, eliminated the SUOU SUU powers of the SC, established the term of the president of the president of Pakistan (CJP) at the age of three and facing the prime minister to appoint the next CJP among the three most senior SC judges.
He also raided the way for the formation of the CB, which is now listening to requests against the legislation that led to his establishment.
The CB that has assumed the pleas, presented by several associations of lawyers of the Superior Court, the PTI and others, against the amendment is headed by Judge Aminuddin Khan and includes judges Jamal Khan Commandkhail, Muhammad Ali Mazha, Ayesha Malik, Syed Hasan Azhar Rizvi, Musarrat Hilali, NaeemamhtaeMhtaemymhtaeMhtaemhtaemyeMyeMhtaem Shahahahhhtaembtaemhtaem Shahahahhtaem, Shahahahahan and Shahahahyhids, Syed Shahides. Billal Hassan.
The last hearing of the case was held on January 27, and there have been called for the procedures to resume priority.
The requests
The petitioners have asked the Apex court to demolish the entire amendment 26 for reasons of procedural incorrectness if it is determined that the two required thirds of the legitimately elected members of each house did not freely exercise their right to vote in favor of the same that is required in article 239, which elaborates in the bills and their approval to amend the Constitution.
In the alternative, the petitioners declared, the Court should reduce certain provisions of the 26th amendment, since they substantially undermine the independence of the Judiciary, which is a more prominent characteristic of the Constitution: the statements for the annual performance evaluation of the judges of the Superior Court by the Pakistan health commission inserted in article 175a (1) and articles 175a (18) (20) (20) (20) (20) (20); The provisions related to the appointment of the president of the president of Pakistan are the replacement of article 175a (3) and the provisions for the constitutional banks of the Apex Court and the higher courts.
As a consequence, the Court must declare that article 175a (3) maintains the field and orders the federal government to notify the highest judge of SC as CJP in accordance with the original article 175a (3).
The petitioners also challenged the constitutionality of constitutional banks, arguing that the SC should declare all amendments invalid for which the votes of said members, whose electoral disputes were pending, were necessary to achieve the numerical threshold prescribed in article 239.
They also requested that the Law of the Supreme Court (practice and procedure) of 2024 and the Law of the Supreme Court (number of judges) (amendment) 2024 declare themselves unconstitutional, annulled ab initio and without legal effect, since they derive from an unconstitutional amendment and represent an attempt to achieve unconstitutional designs.
The petitioners also requested the SC for a complete judicial hearing of the supplications instead of a hearing by the CB, which was established under the 26th amendment.
‘Lost Opportunity’
Between January and now, there have been calls for a complete judicial hearing of these pleas.
On August 14, two responses from the president of the Supreme Court of Pakistan Yahya Afridi were uploaded on the website of the Court, explaining why he had ignored a decision made last year by a committee to present challenges to amendment 26 before the complete SC.
The Committee, which met on October 31, 2024, by virtue of the Practice and Procedure Law (PPA) 2023, was convened by Puisne’s senior judge, Syed Mansoor Ali Shah, and Judge Munib Akhtar. In response, the CJP Aphridi, who presides over the committee, said he did not consider appropriate to request a complete judicial hearing.
The CJP had argued that such movement would undermine the spirit of collegiality so necessary among the judges and would expose the Court Apex to public comments, which, he said, had unfortunately been the case in the recent past.
On August 20, Judges Shah and Akhtar wrote a joint letter to the CJP, after SC’s decision to make public the minutes of the October 31 committee.
In his joint letter, Judge Shah and Judge Akhtar observed: “The challenges for amendment 26 remain pending and a golden opportunity to decide them in the first case before the institution as a whole, that is, the complete court as it was, it has been lost, perhaps irremediably.”
More to follow
