26th Amendment case: Justice Mazhar says Constitutional Bench and SC are not separate

• No full court in Constitution, it exists in judicial precedents: lawyer.
• How to ignore Art 191A while sitting in its jurisdiction? asks judge.
• Justice Malik inquires if full court will never be formed in future.

ISLAMABAD: Supreme Court's Justice Muhammad Ali Mazhar has observed that the Constitutional Bench and the apex court are not separate entities.

"We are also judges of the SC," Justice Mazhar remarked on Thursday during a hearing of pleas against the 26th Constitutional Amendment.

Justice Mazhar is part of the eight-member bench led by Justice Amin-Ud-Din Khan and also includes Justice Ayesha A Malik, Justice Syed Hassan Azhar Rizvi, Justice Musarrat Hilali, Justice Naeem Akhtar Afghan, Justice Jamal Khan Mandokhail and Justice Shahid Bilal Hassan.

Dozens of 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, petitioner Mustafa Nawaz Khokhar's lawyer Shahid Jamil appeared before the court and said that his plea concerned the apex court's practice and procedure committee.

The court, however, said that they would listen to him later and summoned SIC's lawyer Uzair Karamat Bhandari to the rostrum to present his arguments.

Expanding on his plea, lawyer Bhandari said that the case at hand could be heard by a full court, which he argued was already present/existing and only had to be summoned.

"There's no full court in the Constitution but it exists in judicial precedents and traditions".

Noting that the decision of the practice and procedure committee concerning full court was right and therefore must be followed, the counsel contended that this full court existed at that time, and the same one should be formed.

"There is an administrative order, there is no question of violating it, There is no restriction on the remaining judges not to sit in the full court."

"[However] it is possible that some judges who are affected by the amendment might not sit in the bench. It would be better to form a full court and leave it to the judges whether they want to sit in the bench or not," Bhandari noted.

To this, Justice Mandokhail questioned: "The 26th Amendment gave us [judges] additional responsibility, what is the difference between the new judges and us [part of SC before the amendment]?

Saying that he wasn't seeking suspension of the amendment, the lawyer pointed out that judicial decisions existed which provided for a constitutional amendment or law to be viewed independently while being heard during any case.

"This bench was formed under Article 191A, how can we ignore it and hear this case," inquired Justice Mazhar, to which the counsel replied that in the case of Civil Court Ordinance, the case remains with the Criminal Court.

"You are right, this has happened in the past," Justice Mazhar remarked while acknowledging Bhandari's argument.

Furthermore, Justice Hilali asked whether the existing CB had the authority to form a bench?

Additionally, Justice Mazhar highlighted that the biggest issue in the said case was how they could ignore Article 191A while sitting within its jurisdiction.

At this, the lawyer said that the court will have to decide on the validity of Article 191A.

Responding to Justice Mazhar's remarks that Article 191A was a valid constitutional provision, the counsel argued that it was "de facto valid but has been challenged".

He further highlighted that there are six such cases from the past that deal with the jurisdiction for hearing a case.

Expressing her views on Article 191A, Justice Malik then said that the said provision was not stripping away anyone's power but was in fact, conferring powers upon the SC.

The judge further asked whether the SC would stop hearing all the cases under Article 184(3) if a CB was not formed?

"Will the SC refuse to hear [matters], saying that it cannot address constitutional issues? Is it that a full court will never be formed in future? Will the full court be dependent on the Judicial Commission to nominate judges due to Article 191A? Justice Malik inquired.

The court, after hearing the lawyer's arguments, adjourned the hearing till November 10 with Justice Amin-Ud-Din saying that the hearing will be fixed depending on the availability of the bench.