SC, high courts can't be barred from hearing cases even if their powers curtailed: Justice Mandokhail

• No denial to hear amendment case on its merits: Justice Mazhar.
• Lawyer says necessary procedure was not followed for amendment.
• SC still has authority to hear cases, notes counsel Khawaja Ahmed.
  

ISLAMABAD: Amid the ongoing debate in the Supreme Court's Constitutional Bench over the 26th Amendment, Justice Jamal Khan Mandokhail on Wednesday said that the apex court and high courts cannot be barred from hearing cases even if their powers are curtailed.

"If the powers of the entire Supreme Court are taken away by an amendment, who will hear the case? [....] the same court would hear the case, right? Justice Mandokhail remarked.

The judge's remarks came during a hearing on pleas against the 26th Amendment being heard by an eight-member bench led by Justice Amin-Ud-Din Khan.

The bench also includes 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.

During today's hearing, former chief justice Jawwad S Khawaja's lawyer Khawaja Ahmed presented his arguments and contended that the 26th Amendment does not prohibit the formation of a full court.

In his remarks, Justice Amin-Ud-Din noted that most senior lawyers, during the hearing, said to put the 26th Amendment aside altogether in their arguments.

Noting that, like judges, lawyers also disagree with each other, counsel Khawaja Ahmed said that he did not agree that a full court needs to comprise all 24 judges.

"[I] have two questions: whether there should be a full court and if yes, then which one?" questioned Justice Malik.

Stressing that the Constitutional Bench is not barred from issuing directives to form a full court, the lawyer highlighted that Justice Mazhar had described a full court as separately in the Raja Amir case.

To this, Justice Mandokhail observed that the CB will have to see whether they have the authority to order the formation of a full court or not.

Expanding on his arguments, the lawyer questioned whether the court will hear the case or not if a 27th Amendment were introduced, due to which an officer of the executive decides all the matters of the SC.

"You will definitely hear the case even in such a situation," Khawaja Ahmed said.

"None of us has denied that we will not hear the 26th Amendment on its merits," responded Justice Mazhar, adding that the bench will issue an order if the lawyer is able to prove that the amendment is against the basic structure of the Constitution.

The counsel further noted that to hear the case, it is necessary to observe that the necessary procedure was not followed for the constitutional amendment.

He added that the SC is in its place and the authority to hear cases still lies with it.

When asked by Justice Mazhar as to whom the bench should direct to form a full court, Khawaja Ahmed said: "Sir, do not underestimate your powers; you can issue a judicial order or direct an executive authority you want, they will be bound by your order".

Upon completion of Khawaja Ahmed's arguments, the court adjourned the hearing till tomorrow (Thursday) with Mustafa Nawaz Khokhar's lawyer Shahid Jamil set to argue before the bench.