Right of appeal won't be available if 16 judges hear 26th amendment case Justice Jamal

Abid Zuberi Advocate citing the Supreme Court judgment in Practice and Procedure Act (PPA), 2023 case on Tuesday said that the Chief Justic...

Abid Zuberi Advocate citing the Supreme Court judgment in Practice and Procedure Act (PPA), 2023 case on Tuesday said that the Chief Justice of Pakistan has the power to form Full Court.

An eight-member Constitutional Bench of the Supreme Court, headed by Justice Amin-ud-Din Khan conducted hearing of the petitions of former Chief Justice of Pakistan Jawad S Khawaja, Pakistan Tehreek-e-Insaf, Jamaat-e-Islami, Sunni Ittehad Council,Chairperson Tehreek-i-Tahaffuz Ayeen-i-Pakistan Mustafa Nawaz Khokhar, and various Bar Councils and Associations.

Abid Shahid Zuberi, representing the former Presidents of the Supreme Court Bar Association (SCBA), responding to yesterday's (Monday) question from Justice Jamal Khan Mandokhail submitted that the judges have the right to hear a case or not, adding that the petitioners' request is to constitute Full Court.

Justice Amin told the counsel that you are demanding Full Court, but then saying that pre-26th amendment judges should hear this case. Justice Jamal asked Zuberi to first make it clear what is his stance, because on one hand you are saying Full Court be constituted, but at the same time demanding that only pre-26th Amendment judges hear this case.

Abid Zuberi citing the Supreme Court judgment in Practice and Procedure Act (PPA), 2023 case said the Chief Justice of Pakistan has the power to form Full Court. He argued that in the instant matter the petitioners won't be able to file appeal against the decision of 8-member bench, as there are 15 judges of constitutional bench, while for hearing of appeal at least nine judges are required.

Justice Ayesha A Malik remarked that now it's in the Judicial Commission of Pakistan's (JCP) hand to provide an appeal or not, adding that if the JCP wanted then by nominating more judges in the constitution bench right of appeal can be granted. However, if the Commission does not want then it can deprive right of appeal. She said that straightaway it is matter of independence of judiciary.

Justice Jamal said that the right of appeal won't be available if 16 judges hear this case. Zuberi argued that the apex court has declared that if the verdicts are based on collective wisdom then there was no need of appeal.

Justice Jamal stated that some lawyers have asked the bench to ignore Article 191A of the constitution, adding that he is unable to comprehend how to ignore this Article, while hearing these petitions.

Justice Ayesha remarked that there are precedents of this Court that the constitutional provisions, which are under challenged, are kept aside for hearing petitions against them.

Justice Jamal asked the counsel on one hand you talk about collective wisdom, but then say that only 16 judges of the Supreme Court should hear the matter. He said that the benches are constituted in accordance with the Supreme Court Rules, 2025. Zuberi said the Rules, which have been notified, in Order 11 says the Committee forms the benches. Justice Jamal told him that nowhere in the Rules it is written that the Chief Justice would form Full Court. Zuberi responded that the Full Court is not a bench.

Justice Jamal said that the SC Rules 2025 were placed before all the 24 judges of this Court. However, Justice Ayesha stated; 'Not before all the judges', adding; 'I have penned down my note in that regard.'

Justice Jamal said; 'then we should requisition the minutes of Full Court meeting, held to examine the rules.' 'All the judges were asked to give their input to the new SC Rules,' he added. He also said that the case would not proceed further unless this issue is not clarified.

However, the Attorney General for Pakistan asked the bench that the Court's internal matter should not be discussed here. But Justice Jamal said; 'But I have been proven wrong.' He further said that in 24 judges meeting the Rules were discussed and a few clauses were referred to a Committee, adding that some judges had given their input.

Justice Ayesha said that the Committees, set up under PPA, Article 191A of the constitution, have power to constitute bench(es), but have no authority to form Full Court. She also said that the Committee's power can be termed the authority of the Chief Justice. 'These are two different jurisdictions, we are not talking about the benches, but the Full Court,' she remarked. Justice Amin then questioned whether the Chief Justice of Pakistan (CJP) can constitute Full Court, which also include the judges of the constitutional bench. Abid Zuberi responded that the CJP has the inherent power to constitute Full Court.

Later, the bench deferred hearing of the case until Wednesday (today).

Provided by SyndiGate Media Inc. (Syndigate.info).