Supreme Court CB head puts his weight behind 26th Constitutional Amendment

• Lawyer Sheikh Akram urges SC to form full court of 24 judges.
• He says tweaks shattered Constitution and one of state's organs.
• "Case should be heard by SC and not a bench," argues Shabbar Raza.

ISLAMABAD: Supreme Court's Constitutional Bench Head Justice Amin-ud-Din Khan has put his weight behind the 26th Constitutional Amendment.

"Don't say that the 26th [Constitutional] Amendment is controversial," Justice Amin-Ud-Din remarked on Monday, while heading an eight-member bench hearing multiple pleas filed against the constitutional tweaks passed by parliament in October last year.

The bench also includes Justice Jamal Khan Mandokhail, Justice Ayesha A Malik, Justice Syed Hassan Azhar Rizvi, Justice Musarat Hilali, Justice Naeem Akhtar Afghan and Justice Shahid Bilal Hassan.

As many as 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.

During the hearing today, senior lawyer Akram Sheikh appeared before the court in his personal capacity and urged the court to constitute a 24-member full court.

"The court should not be further packed by adding any more judges [....] I leave the issue of conflict of interest to the judge," the lawyer said, while questioning why there is an insistence for the case to be heard by the existing bench.

Stressing that the court has to follow the "stare decisis" (precedent), the lawyer said that an election was held in the country and some people thought that it would be scrutinised. Therefore, Sheikh argued, the foundation was laid for the 26th Amendment.

"The 26th Amendment has shattered the Constitution and one of state's organs [judiciary]," he remarked.

"I hope that Allah gives courage to judges to declare the 26th Amendment 'null and void'," the lawyer noted.

To this, Justice Mandokhail said: "The 26th Amendment is now part of the Constitution or you say that it should be removed from it?"

When Justice Amin-Ud-Din lamented that the lawyer had not presented a single legal and constitutional point, the counsel replied that there were existing decisions according to which the eight judges could not hear the said case.

Responding to lawyer Sheikh's argument that the entire SC should be given the opportunity to validate Article 191-A, Justice Amin-Ud-Din said: "If you think that you want to go to the competent forum, then go to the chief justice".

Expanding on the nature of constitutional bench on the occasion, Justice Mandokhail acknowledged that the judges had two roles, i.e., one of a judge working in general capacity and the other being part of a constitutional bench.

"You said that we eight judges cannot declare the 26th Amendment null and void because we are beneficiaries. Then, which judges are not affected by the 26th Amendment and should hear this case?" Justice Bilal Hassan inquired.

When asked by Justice Mazhar whether all 24 judges of the SC should hear the said case, lawyer Sheikh said his position was that if a judge's conscience is disturbed then he should not hear the case.

Upon completion of Sheikh's arguments, petitioner Shabbar Raza Rizvi presented his arguments and said that the practice and procedure committee can constitute a full court.

"This case should be heard by the SC and not a bench," Rizvi said.

"Do you want 16 judges or 24 judges to hear the case? questioned Justice Mandokhail.

"I have no objection to 24 judges hearing the case," Rizvi responded.

The court then adjourned the hearing till 11:30am on Wednesday (tomorrow) .