26th Amendment: India’s Constitutional Bench also has ‘special powers’, says Justice Mazhar

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ISLAMABAD: Supreme Court Justice Muhammad Ali Mazhar on Tuesday compared the judicial systems of Pakistan and India, saying that the constitutional bench in the neighboring country also has special powers.

During the hearing of the petitions challenging the 26th constitutional amendment, lawyer Shabbar Raza Rizvi told the bench that India was the only country where there was a constitutional bench, while other countries had a constitutional court.

Justice Mazhar responded by saying: “Even in India, the Constitution Bench has special powers”.

“India is the only country where there is a constitutional bench, other countries have a constitutional court,” replied lawyer Rizvi, adding that only the chief justice in a neighboring country can constitute a bench.

“In India, CJ has been hailed as the Master of Rooster [whereas] Drawing a comparison between the judicial structures of Islamabad and New Delhi, Justice Mazhar remarked, “Two committees were formed in Pakistan and the CJP is not the master of the roster.

The remarks came during the hearing of several petitions filed against the 26th Amendment, with an eight-member bench headed by Justice Aminuddin Khan.

Justice Jamal Khan Mandukil, Justice Ayesha Ek Malik, Justice Syed Hasan Azhar Rizvi, Justice Musrat Hilali, Justice Naeem Akhtar Afghan and Justice Shahid Bilal Hasan are also included in this bench.

About three dozen applicants, including Pakistan Tehreek-e-Insaf (PTI), Jamaat-e-Islami (Ji), Sunni Ittihad Council (SIC), Lahore High Court Bar Association, Lahore Bar Association, Karuchari Bar Association, Karachi Bar Association as well as seven former presidents of the Supreme Court Bar Association (SCBA). Constitutional amendment.

Presenting his arguments today, Advocate Rizvi said that under the amendment, the SC has retained its constitutional powers subject to a proviso.

Justice Mazhar replied, “The 26th Amendment has transferred the power of constitutional interpretation to the SC to the Constitution Bench.”

Justice Hilali said that the constitution has already been amended and a CB has been constituted accordingly and asked, “Are you? [Rizvi] Asking if we have to suspend the 26th Amendment first? “

“How will we bypass Article 191-A?” The judge asked, to which the lawyer replied that the said article should be read in conjunction with other provisions of the Constitution, as “it cannot be read alone”.

Responding to Rajavi’s contention that the powers under Article 184(3) were not extinguished by Article 191-A, Justice Mazhar held that the former powers were transferred to the CB under Article 191-A.

Justice Mazhar noted, “Regular and constitution benches are two branches of the same tree. Their powers are separate.”

Responding to counsel Rizvi’s remarks that the said bench could issue a judgment directing the constitution of a full court, Justice Aminuddin questioned: “Should judges who do not have the authority to interpret the constitution be included in the bench?”

“How can a Constitution bench give power to judges that the Constitution has taken away?” Further inquiring, he added that there is no prohibition to prevent inclusion of CJP in CB.

The lawyer added that Article 191a itself says that a constitution bench is part of the SC and it can refer the matter to a full court.

“To whom shall we send this matter of forming a full court?” Justice Mazhar asked.

“You [court] He himself said that if the government sends a presidential reference, the matter will go to the Chief Justice.

However, Justice Mazhar questioned how the CJP can nominate judges when they are part of the Judicial Commission of Pakistan (JCP).

After Rizvi concluded his arguments, barrister Adnan Khan, representing petitioner Anas Ahmed, presented his arguments seeking constitution of a full court to hear petitions against the 26th Amendment.

Barrister Khan said that Justice Mazhar One again inquired that the matter should be referred to a full court, Barrister Khan said that there was no bar to constitute a full court.

“Are you saying we should send a full court? [the mater] To the CJP? ” questioned Justice Hilali.

“My Lord, a full court is not constituted, a full court is always there. It is only convened,” the lawyer replied, adding that a full court consists of all SC judges.

Barrister Khan noted, “The JCP has a majority in the government.”

At the conclusion of the counsel’s arguments, the court adjourned the hearing till Wednesday (tomorrow).