• Govt has no plans to form such benches; PPP leader hints at moving court if provincial assembly doesn’t adopt resolution
• Ex-provincial law officer doesn’t foresee any ‘imbalance’ with other provinces

WHILE the provincial government of Khyber Pakhtun­khwa has no plans to create constitutional benches in the Peshawar High Court, as provided for by the latest constitutional amendment passed by parliament, the opposition may have something to say about it.

“So far, we have no intention … [to pass] a resolution from the provincial assembly for the formation of constitutional benches in the high court,” Barrister Mohammad Ali Saif, the KP CM’s spokesperson, told Dawn.

He said that while no formal decision had been taken in this regard, in principle there was no likelihood of such a move in the near future.

Mr Saif said the KP government’s stance on the 26th amend­ment was very clear, as the ruling Pakistan Tehreek-i-Insaf (PTI) had openly opposed it in parliament.

Last week, the Sindh Assembly became the first provincial legislature to pass the required resolution, whereas the provincial governments of Punjab and Balochistan and the federal government (in respect of the Islamabad High Court) are likely to follow suit soon.

The Judicial Commission of Pakistan (JCP) has already discussed matters related to the formation of the new bench with regards to the Sindh High Court in its meeting earlier this week, where it was decided that all its judges will serve on the constitutional benches until Nov 24.

But Ahmad Karim Kundi, the PPP’s parliamentary leader in the KP Assembly, told Dawn they would try to get the resolution passed from the legislature.

In case it is not passed, Mr Kundi said, they would consider approaching the courts as — in his view — the formation of constitutional benches in the high court had become mandatory following the passage of the 26th amendment.

However, the opposition MPA’s hopes seem to be misplaced, as the PTI enjoys the support of 93 members in the KP Assembly, as opposed to 27 opposition members. In such a scenario, it seems highly unlikely that the required resolution could be passed without the support of the ruling party.

In addition, KP Advocate General Shah Faisal Utmankhel believes that under the amendment, the Assembly was under no compulsion to pass such a resolution.

The government is in no hurry over the issue of formation of constitutional benches in the high court, he told Dawn, adding that prior to the passage of the amendment, the provincial cabinet had decided to challenge it after its enactment.

Article 202A, incorporated into the Constitution through the 26th amendment, provides for the formation of constitutional benches in the high courts, comprising judges of the court nominated by the JCP.

However, sub-clause 7 of the same article links the enforcement of this provision with the passage of a resolution by the relevant provincial assembly. In case of Islamabad High Court, the resolution has to be passed by a joint sitting of parliament.

“The passage of the resolution under sub-clause 7 of Article 202A is not mandatory for the provincial government or the assembly and it’s the discretion of the government [whether] to pass a resolution or otherwise,” said senior constitutional expert and former KP advocate general, Shumail Ahmad Butt.

In his view, the wording of the article is clear and should not be misinterpreted.

When asked about the possible impact on KP if three other provinces passed the required resolution, he did not foresee any legal complications.

Mr Butt was of the opinion that the non-passage of a resolution won’t affect the powers of the PHC under Article 199, and it could continue to interpret laws on the touchstone of constitutional provisions.

He pointed out that the constitutional benches won’t be exercising any extra powers, which the present benches of the PHC do not already possess.

The only procedural difference under the 26th amendment, he believes, would be that the constitutional bench of the Supreme Court would hear appeals originating out of judgements of the high court in matters that involve questions regarding the constitutionality of a law, or a substantial question of law involving the interpretation of the Constitution.

Published in Dawn, November 11th, 2024