Supreme Court Justice Mansoor Ali Shah has written to Chief Justice of Pakistan (CJP) Yahya Afridi, seeking a full court to hear pleas challenging the 26th Constitutional Amendment.
In his letter, the senior puisne judge noted there were several pending petitions challenging the constitutionality of the amendment. He said the issue should be resolved through the hearing of a full court.
According to Justice Shah, the amendment altered the composition of the Judicial Commission of the Pakistan. An adverse decision on the 26th constitutional amendment, he wrote, could potentially invalidate actions taken by the commission under the contested amendment. If the petitions succeed, he warned, they could render the decisions of the Judicial Commission null and void, which may embarrass the institution and its members. He stressed the need for a timely decision to resolve the legal status of the commission.
The letter also recalled an Oct. 31 decision penned by him and Justice Munib Akhtar in which they had directed the scheduling of a hearing for the petitions. However, he wrote, the registrar had yet to list any of the petitions before a full court.
Stressing on the urgency of the petitions, especially as the JCP seeks to fill vacancies on high courts, he urged the chief justice to direct the registrar to schedule them for hearing before a full court bench. He noted that Article 19A, amended by the 26th constitutional amendment, restricted regular Supreme Court benches from hearing constitutional petitions, but did not prevent a full court from doing so.
Until the petitions could be fixed for hearing and the issue resolved, he proposed, meetings of the JCP should be delayed.
Responding to the latter, Defense Minister Khawaja Asif said “selective sense of justice” did not suit the senior puisne judge of the Supreme Court. “Justice Shah is concerned that ignoring his letter could harm public confidence in the judiciary,” he said, accusing several former judges such as Saqib Nisar, Asif Saeed Khosa, Ijazul Ahsan, and Mazahar Naqvi of tarnishing the judiciary’s reputation. He questioned why Justice Shah had not raised similar concerns at that time.
“Why were these issues of public trust not raised before, Shah sahib? Is this concern based on personal reasons?” he said. “Shah sahib, your office is highly respected, and so are you. But such selective justice does not match your esteemed stature,” he added.
Parliament passed the 26th constitutional amendment in October, introducing several judicial reforms. Among the contentious clauses of the amendment is the limiting of the Supreme Court’s suo motu powers; a fixed, three-year term for the Chief Justice of Pakistan (CJP); the formation of constitutional benches; and the appointment of the CJP from a panel of three most senior judges of the Supreme Court.