ISLAMABAD: Justice Jamal Mandokhel has remarked during the hearing of the case related to the 26th Constitutional Amendment that the Supreme Court judges have accepted the 26th Constitutional Amendment whether they like it or not.
The petitions filed against the 26th Constitutional Amendment in the Supreme Court were heard by an 8-member constitutional bench headed by Justice Aminuddin Khan, which included Justice Jamal Mandokhel, Justice Muhammad Ali Mazhar, Justice Ayesha Malik, Justice Hassan Azhar Rizvi, Justice Musarat Hilali, Justice Naeem Afghan and Justice Shahid Bilal.
During the hearing, Balochistan Bar lawyer Munir A Malik came to the rostrum.
Justice Aminuddin told Munir A Malik that he wanted to say something on the video link from Karachi the previous day but the sound was not heard properly. Munir A Malik said that he had a request related to live streaming, on which Justice Aminuddin said that now the decision has been taken on it, so this request has become ineffective.
Munir A. Malik said that he accepts Hamid Khan’s arguments and will give further arguments. On this, Justice Jamal Mandokhel asked whether he also agrees with Hamid Khan’s point that the points of the 26th Constitutional Amendment should be kept aside? Justice Muhammad Ali asked whether he also agrees with the position of ignoring Article 191A.
Munir A. Malik argued that the full court existed even before the amendment and could have been formed even then. There is a request for a direction from the existing bench for the full court. A constitutional bench is established within the Supreme Court. A bench consisting of all the judges of the Supreme Court hears the petitions.
Justice Ayesha Malik asked whether there is any obstacle in forming a full court? Justice Muhammad Ali asked whether the existing 8-member bench has the jurisdiction to form a full court? To which lawyer Munir A. Malik replied that it does not matter whether the existing bench is regular or constitutional, who will hear the case? The current bench can decide.
Justice Muhammad Ali asked that if we issue a judicial order, will you call it an administrative order? Will there be no violation of Article 191A?, to which lawyer Munir A Malik said that there will be no violation, the constitutional bench has judicial powers.
Justice Ayesha Malik asked that you want the constitutional bench to form a full court using judicial powers? The court has relied on the constitution many times instead of the amendment. Justice Muhammad Ali Mazhar said that how can we bypass Article A191?, Justice Ayesha Malik said that you cannot rely on the 26th Amendment in the petition against the 26th Amendment. You can rely on the constitution, you cannot defend the 26th Amendment through it, Munir A Malik, is that what you are trying to say?
Lawyer Munir A Malik said that this 8-member constitutional bench has the power to issue a judicial order. The current constitutional bench can order a full court. A full court case comprising all the judges of the constitutional bench should be heard.
Justice Muhammad Ali Mazhar asked that after the amendment, can we give any such order apart from the judges committee? Justice Ayesha Malik said that there is a Supreme Court decision in the District Bar Association case. If the amendment is under hearing, the constitution before the amendment will be seen. According to the procedure that was in place before the constitutional amendment, it can be said that there is a full court.
Munir A Malik said that absolutely! You are right and even now this bench can order a full court. The bench was first formed in the Shariat Court.
Justice Jamal Mandokhel said that the jurisdiction of the Supreme Court has not been taken, but the Judicial Commission can nominate any judge. The Judicial Commission comprising senior judges can form any bench it wishes.
Justice Aminuddin said that the jurisdiction comes in the merits of the case. On which lawyer Munir A Malik said that the Constitutional Bench has judicial powers.
Justice Jamal Mandokhel asked whether the Chief Justice can issue an order that a case will be heard by a full court. To which lawyer Munir A Malik replied that any bench can pass a judicial order, there is no obstacle in passing a judicial order.
Justice Ayesha Malik said that the constitutional amendment has been challenged, can a full court be formed in the presence of the amendment? If we want to look at judicial powers, then we should not look at Article 191A. Justice Muhammad Ali said that if we ignore Article 191A, then why are we sitting in court?
Lawyer Munir A Malik said that I consider the constitutional bench to be the same bench as the Supreme Court. Be it a constitutional or regular bench, the current bench has judicial powers.
Justice Aminuddin said that the judicial committee formed the current bench, a bench consisting of the judges who were available was formed. Justice Jamal Mandokhel said that the judicial committee can form any bench.
Justice Musarat Hilali asked how the current bench should decide on its jurisdiction? We will have to go before the amendment to the constitution, we will have to see why the 26th constitutional amendment was made, those judges who were promoted after the 26th constitutional amendment should not sit on the bench.
Justice Jamal Mandokhel asked that we are from before the 26th constitutional amendment, have new judges been brought from another country? In every meeting of the Judicial Commission, I and the Chief Justice demanded that all judges should be included in the constitutional bench, will you be satisfied in such a situation?
Lawyer Munir A. Malik said in his arguments that whether it is a constitutional or regular bench, it does not matter, judicial powers are there. Justice Jamal Mandokhel said that leave the jurisdiction, tell us a way in which all judges sit on the bench. Which Chief Justice will head the bench? Will the Chief Justice of the 26th amendment head the bench?