• Justice Mansoor Shah’s call for full court ignored; CJP Afridi says committee will fix challenges to 26th amendment
• JCP meeting goes ahead as planned; commission approves new rules drafting committee
• Justice Munib abstains as Justice Shahid Bilal made eighth member of constitutional bench

ISLAMABAD: In an apparent response to letters from senior puisne judge Justice Syed Mansoor Ali Shah, Chief Justice of Pakistan (CJP) Yahya Afridi on Friday clarified that a three-judge committee would determine when to fix challenges to the 26th constitutional amendment before the constitutional bench.

During the scheduled meeting of the Judicial Commission of Pakistan (JCP), which CJP Afridi chaired as its chairman, he explained that he had already addressed Justice Shah’s suggestions, according to a source privy to the meeting.

Justice Shah had requested a postponement of the JCP session until the 26th Amendment challenges were resolved. In a letter, he also proposed convening a full court bench to hear the pending challenges to the amendment and formulate JCP’s procedural rules under Article 175A(4) of the Constitution.

CJP Afridi emphasised that cases filed under Article 184(3) of the Constitution or those requiring constitutional interpretation must be heard by a constitutional bench.

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The chief justice insisted that he had no role in the matter and that it was now up to the committee to decide when to take up the issue. Moreover, it was beyond the scope of the Judicial Commission to discuss anything about the 26th Amendment, the CJP said.

Justice Munib Akhtar, attending the meeting via video link from the Supreme Court’s Karachi registry, supported Justice Shah’s contentions. However, the majority of the commission members sided with CJP Afridi’s stance.

The letter written by Justice Shah was also supported by Islamabad High Court Bar Association President Riyasat Ali Azad and the All Pakistan Lawyers Action Committee for Restoration of Constitutional Rule and the Independence of Judiciary.

They argued that the “principled stance” taken by Justice Shah highlighted critical constitutional violations stemming from the “fraudulent and illegal” passage of the 26th amendment, which had undermined judicial independence and trampled upon the foundational principles of the Constitution.

Prominent members of the action committee include former Supreme Court Bar Association presidents Muneer A. Malik, Hamid Khan, Abid Hassan Minto, Aman Ullah Kanrani, Ali Ahmad Kurd and Abid Zuberi.

Nomination to constitutional bench

The JCP also approved the nomination of Justice Shahid Bilal Hassan as the eighth member of the constitutional bench under the 26th Amendment. This followed a referral by a three-judge panel to a committee tasked with fixing cases for early hearings of intra-court appeals (ICAs) against the military court trials judgement of Oct 23, 2023.

Justice Ayesha A. Malik, a member of the bench that declared military trials unconstitutional, recused herself from the appeals due to her involvement in the original ruling. Justice Munib Akhtar abstained from voting on Justice Hassan’s elevation to the constitutional bench.

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Justice Malik is also a member of the present seven-judge constitutional bench, which is hearing several cases involving the interpretation of constitutional provisions.

The JCP also prioritised drafting procedural rules, authorising the CJP to appoint members to a committee for this purpose. Justice Jamal Khan Mandokhail will chair the committee, with Attorney General of Pakistan Mansoor Usman Awan, Senators Barrister Syed Ali Zafar and Farooq H. Naek and senior counsel Akhtar Hussain serving as members. The committee aims to present draft rules by Dec 15.

The committee will also have the support of JCP Secretary Niaz Muhammad Khan and research officers Zafar Iqbal and Qaiser Abbas.

The JCP also deferred the appointment of additional judges for the Peshawar and Sindh high courts until Dec 21 and extended the nomination submission deadline to Dec 10.

Justice Adnanul Karim Memon and Justice Agha Faisal were nominated to the constitutional benches of the Sindh High Court by a majority vote.

Earlier, in a joint preliminary meeting, the commission received a detailed presentation from IT experts on using technology to reduce the massive paper load involved in decision-making.

The CJP informed the participants that the move was intended to reduce the burden on the secretariat and members of the commission.

Published in Dawn, December 7th, 2024