ISLAMABAD: Supreme Court Justice Muhammad Ali Mazhar has cited an example of Indian judiciary as the top judges debated the powers vested in Constitutional Bench and the apex court.
During a hearing of the petitions challenging the 26th Constitutional Amendment, lawyer Shabbar Raza Rizvi contended before the bench that India was the only country where there is Constitutional Bench, while other countries have a Constitutional Court.
Justice Mazhar responded by saying: "In India too, the Constitutional Bench has special powers".
"India is the only country where there is a Constitutional Bench, other countries have a Constitutional Court," responded lawyer Rizvi, adding that in the neighbouring country, only the chief justice can form the bench.
"In India, the CJ has been declared Master of Roster [whereas] in Pakistan two committees have been formed and the CJP is not the Master of the Roster," remarked Justice Mazhar while drawing a comparison between the judicial structure of Islamabad and New Delhi.
The remarks came during the hearing of multiple pleas filed against the 26th Amendment, by an eight-member bench led by Justice Amin-Ud-Din Khan.
The bench also includes Justice Jamal Khan Mandokhail, Justice Ayesha A Malik, Justice Syed Hassan Azhar Rizvi, Justice Musarrat Hilali, Justice Naeem Akhtar Afghan and Justice Shahid Bilal Hassan.
Around three dozen petitioners, including the Pakistan Tehreek-e-Insaf (PTI), Jamaat-e-Islami (JI), Sunni Ittehad Council (SIC), Lahore High Court Bar Association, Lahore Bar Association, Karachi Bar Association as well as the former seven presidents of the Supreme Court Bar Association (SCBA) and various individuals in personal capacity, had challenged the validity of the 26th Constitutional Amendment.
Presenting his arguments today, counsel Rizvi said that under the amendment, the SC retained its constitutional powers under a proviso.
"The 26th Amendment has transferred the power of constitutional interpretation to the SC to the Constitutional Bench," Justice Mazhar replied.
Justice Hilali said that the Constitution had already been amended and a CB had been formed accordingly and asked, "Are you [Rizvi] asking that we will have to suspend the 26th Constitutional Amendment first?"
"How will we bypass Article 191-A?" the judge questioned, to which the lawyer replied that the said article must be read in conjunction with other provisions of the Constitution, as "it could not be read alone".
Responding to Rizvi's argument that powers under Article 184(3) were not extinguished by Article 191-A, Justice Mazhar said the powers of the former had been transferred to the CB under Article 191-A.
"Regular and constitutional benches are two branches of the same tree; their powers are separate," noted Justice Mazhar.
Replying to lawyer Rizvi's remarks that the said bench could issue a judgment directing the formation of a full court, Justice Amin-Ud-Din questioned: "How can judges who do not have the authority to interpret the Constitution be included in the bench?"
"How can a Constitutional Bench give authority to judges from whom the constitution has taken authority?" he inquired further, adding that there was no prohibition preventing the inclusion of CJP in the CB.
The counsel further contended that Article 191A itself says that the Constitutional Bench is part of the SC and can refer the matter for the formation of full court.
"To whom should we send this matter of forming a full court?" asked Justice Mazhar.
"You [court] yourself said that if the government sends a presidential reference, the matter will go to the CJP," Rizvi said.
However, Justice Mazhar questioned how the CJP can nominate judges when he is part of the Judicial Commission of Pakistan (JCP).
Upon completion of Rizvi's arguments, Barrister Adnan Khan, representing petitioner Anas Ahmed, presented his arguments seeking the formation of a full court to hear the pleas against the 26th Amendment.
Justice Mazhar one again inquired to whom the matter should be forwarded for a full court, Barrister Khan said that there was no restriction in forming a full court.
"Are you saying that we should form a full court and send [the mater] to the CJP?" questioned Justice Hilali.
"A full court is not formed, my lord, the full court is always present; it is just summoned," the lawyer replied, adding that a full court comprises all the judges of the SC.
"The government has a majority in the JCP," Barrister Khan noted, to which Justice Amin-Ud-Din inquired how is that so.
Upon the culmination of the counsel's argument, the court adjourned the hearing till Wednesday (tomorrow).