CB remains 'inactive' as key legal battles rage on

Express Tribune

17-03-2025

More than four months since its formation, the constitutional bench has yet to deliver rulings on any critical cases, raising concerns over judicial inertia.
On November 4, 2024, the Judicial Commission of Pakistan (JCP) nominated eight judges for the constitutional bench by a majority vote, with government-backed members playing a decisive role in the selection.
The bench, led by Justice Aminuddin Khan, was widely expected to rule on the trial of civilians in military courts. However, while it conditionally permitted military courts to issue verdicts in cases related to the May 9 incidents, the bench has yet to conclude proceedings – despite holding 46 hearings.
The case is set to resume next month, with Defence Ministry counsel Khawaja Haris stating he requires at least eight more hearings to complete his rebuttal.
Moreover, the constitutional bench has also been unable to take up two other crucial cases due to the prolonged hearings in the military courts' case.
In January, a bench led by Justice Syed Mansoor Ali Shah raised the question of whether a regular bench could be barred from hearing matters related to the interpretation of the law and the Constitution.
Subsequently, the constitutional bench committee scheduled hearings for petitions challenging the 26th Amendment on January 28.
However, the eight-member constitutional bench conducted only one hearing before adjourning the matter for three weeks. More than 50 days have passed since, and the case has yet to be scheduled for further proceedings.
Similarly, another key case remains pending, the dispute over the seniority of Islamabad High Court (IHC) judges.
Five IHC judges have challenged the transfer of three judges from different high courts to the IHC. They have petitioned the Supreme Court, seeking to reclaim their seniority, which was altered following the transfers.
The dispute particularly revolves around Justice Sarfraz Dogar from the Lahore High Court (LHC), who became the senior puisne judge, replacing Justice Mohsin Akhtar Kayani.
The petitioners argue that the seniority of transferred judges should be determined only after they take a fresh oath. Several bar associations have also challenged these transfers, and PTI has filed a constitutional petition on the same issue.
While these petitions have been allotted, they have not yet been scheduled for hearings.
Legal experts believe that keeping the status quo in these crucial cases plays into the hands of the executive.
Military courts have already passed judgment, and the accused are now serving their sentences – case closed, at least for now.
Meanwhile, with the 26th Amendment rolling out without a hitch, the government sees no pressing need to stir the pot.
Similarly, the government's blueprint for the IHC is unfolding without a wrinkle. Justice Sardar Sarfraz Dogar holds the fort as acting IHC chief justice, and unlike in the past, the administration is not running into roadblocks on this front.
The Karachi Bar Association, through lawyer Faisal Siddiqi, has also challenged the transfer of the three judges to the IHC.
The 26th Amendment vests exclusive authority in the constitutional bench to interpret the law and the Constitution, barring regular benches from exercising jurisdiction in this regard.
However, the constitutional bench has yet to weigh in on any legal point since November last year, with concerns being that it was high time the bench laid down jurisprudence in public interest matters.
Experts have argued that to rein in judicial overreach, the constitutional bench must draw clear lines for the exercise of public interest jurisdiction under Article 184(3) of the Constitution.