An eight-judge Constitutional Bench (CB) of the Supreme Court (SC) is set to resume hearing a set of pleas challenging the 26th Amendment, which altered judicial authority and tenure, and has been a lightning rod for debate[1] with both opposition parties and legal experts questioning its impact on the judiciary’s autonomy.
The Amendment, which was approved[2] by both houses of parliament in October last year, took away the SC’s suo motu powers, set the chief justice of Pakistan’s (CJP) term at three years and empowered the prime minister to appoint the next CJP from among the three most senior SC judges.
It also paved the way for the formation of the CB, which is now hearing petitions against the very legislation that led to its establishment.
The CB that has taken up the pleas — filed by various high court bar associations and others — against the Amendment is headed by Justice Aminuddin Khan and comprises Justices Jamal Khan Mandokhail, Muhammad Ali Mazhar, Ayesha Malik, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhtar Afghan and Shahid Bilal Hassan.
The last hearing[3] of the case was held on January 27 and there have been calls[4] for the proceedings to be resumed on a priority basis.
The petitions
The petitioners have requested the apex court to strike down the entire 26th Amendment on the grounds of procedural impropriety if determined that the requisite two-thirds of the lawfully elected membership of each House did not freely exercise their right to vote in favour of the same as required under Article 239, which elaborates on bills and their passage to amend the Constitution.
In the alternative, the petitioners pleaded, the court should strike down certain provisions of the 26th Amendment since they substantively undermine the independence of the judiciary which is a salient feature of the Constitution: namely the provisions for annual performance evaluation of judges of the high court by the Judicial Commission of Pakistan being inserted in Article 175A(1) and Articles 175A(18) to (20); the provisions relating to the appointment of the chief justice of Pakistan being the substitution to Article 175A(3) and the provisions for constitutional benches of the apex court and high courts.
As a consequence, the court should declare that the original Article 175A(3) holds the field and direct the federal government to notify SC’s senior-most judge as CJP in accordance with the original Article 175A(3).
The petitioners also challenged the constitutionality of the constitutional benches, arguing that the SC should declare invalid all amendments for which votes of such members, whose election disputes were pending, were necessary to achieve the prescribed numerical threshold in Article 239.
They also requested the SC for a full court hearing of the pleas instead of a hearing by the CB, which was established under 26th Amendment.
More to follow
References
- ^ lightning rod for debate (www.dawn.com)
- ^ approved (www.dawn.com)
- ^ last hearing (www.dawn.com)
- ^ calls (www.dawn.com)