Latest news with #SupremeCourtPracticeandProcedureAct2023
Express Tribune
10 hours ago
- Politics
- Express Tribune
CJP faces scrutiny over ignoring full court order in 26th Amendment case
Chief Justice of Pakistan Yahya Afridi is facing criticism after Supreme Court (SC) committee minutes revealed that he ignored a majority decision last year to form a full court to hear petitions challenging the 26th Constitutional Amendment. The three-member committee, operating under the Supreme Court Practice and Procedure Act 2023 to form regular benches, was chaired by CJP Afridi in late October last year, with Justice Syed Mansoor Ali Shah and Justice Munib Akhtar as members. The majority — Justices Shah and Munib — had ordered the petitions be fixed before a full court on November 4, 2024. According to the minutes, CJP Afridi argued the committee lacked legal authority to direct the formation of a full court. He also consulted all judges individually and nine of the 13 supported the formation of a constitutional bench to hear the case. Now that the CJP's justification for the non-formation of a full court is in public domain, lawyers are questioning his conduct by asking who will determine how many judges had opposed and what question was placed before each judge. "How could judges have been consulted on a matter which, according to the statute, was not within their jurisdiction? Why every week all 23 are not consulted?" asked a lawyer, speaking to The Express Tribune on the condition of anonymity. Likewise, advocate Abdul Moiz Jaferii said he failed to understand why an informal poll of other judges was taken by the CJP after the practice and procedure committee - as it then was - had made a majority decision. "I similarly fail to understand why such a determination, if it was needed after the committee decision, was not taken in a formal full court meeting. I also fail to understand why the CJP was willing to interpret the 26th Amendment in favour of the executive's influence, and reluctant to have the Amendment's constitutionality first tested by a full sitting of his peers," said advocate Jaferii. Read: SC judges urge CJP to call full court on 26th Amendment pleas Meanwhile, advocate Asad Rahim Khan said that the job of the chief justice, before everything else, is to preserve the independence of the judiciary; not to accept its subordination by the executive. "Should [former] chief justice Nasirul Mulk have put off a full court from hearing the challenge to the 21st Amendment, by arguing that Article 175(3) had already been amended, and there was nothing left for the Court to do about it? For or against, the judges decided according to their consciences, and the law was settled. Again, that was their job," said the advocate. He further said that the greatest judicial regression in 30 years – where the amendment's very passage is under a cloud – can't be treated as a fait accompli. "Going by this logic, if the Constitution were subverted through a [provisional constitutional order] PCO or some other unlawful means tomorrow, that wouldn't be heard either, as it would be [illegally] protected in the text of the Constitution," he added. The longer the amendment is undecided, the longer its automatic acceptance, and, as a result, the longer the judiciary's corrosion. Another senior lawyer opined that paragraph three of the CJP's response was bizarre. "It indicates that SC does not believe in transparency and fears criticism. Public comment is the best form of accountability. Avoiding a full court meeting at that time shows the intent. The matter should have been discussed in Full Court meeting because opinion of majority of members of committee was binding. The law was violated by the CJP," said the senior lawyer, speaking on the condition of anonymity. He asked how one member could violate the decision of a statutory committee empowered to decide how and which cases were to be fixed. The statute did not give power to one member to overrule the majority decision. The other judges were not relevant and seeking their informal individual opinion was illegal and in out right violation of law, he said. Since November last year, the constitutional bench is unable to decide the fate of 26th Constitutional Amendment. In January, the constitutional bench took up the matter and adjourned the hearing for three weeks. Later, the bench did not hear the case. Interestingly, the creation of constitutional bench itself is under challenge. Questions are being raised as to how the beneficiaries of 26th Constitutional Amendment can decide about their future. Read more: Judicial reforms shape SC's first constitutional bench Now the situation has changed in the apex court. Eight new judges are elevated to the apex court since February. Even most of them are included in the constitutional benches. Last November, SC judges Justice Mansoor Ali Shah and Justice Munib Akhtar urged the CJP to immediately fix hearings for the pleas challenging the 26th Constitutional Amendment. In their letter, the two judges, who are part of the committee responsible for fixing cases and forming benches under the Supreme Court Practice and Procedure Act (2023), stated that the committee has decided to hear these constitutional petitions in a full court, with the initial hearing date set for November 4. The dispute began on October 31, when Justices Shah and Akhtar formally addressed a letter to CJP Afridi, urging him to hold a meeting under the Supreme Court Practice and Procedure Act 2023. With no response from the CJP, Justices Shah and Akhtar held an independent meeting in the latter's chambers to determine the next steps. Following this private session, the two justices decided by majority vote to bring the amendment petitions before a full court on November 4. They then sent a second letter to CJP Afridi, expressing their concerns over the postponement. According to the letter, the judges had previously informed the registrar of their decision on October 31 and instructed the registrar to publish the decision on the Supreme Court's official website. They argued that the petitions challenging the amendment demand a comprehensive review by the full court, as this matter involves constitutional implications that go beyond standard judicial concerns. By refraining from convening a full court, the chief justice had, according to some experts, signaled a cautious approach to the handling of such cases, potentially seeking to avoid judicial overreach or political entanglements.
Express Tribune
a day ago
- Politics
- Express Tribune
CJ explains why he didn't form full court
Chief Justice of Pakistan Yahya Afridi speaks at a conference at the Federal Judicial Academy in Islamabad on July 25, 2025. SCREENGRAB Chief Justice of Pakistan Yahya Afridi has justified his action to not constitute a full court to hear petitions challenging the 26th Amendment in November last year. The dispute began on October 31 last year, when Justice Syed Mansoor Ali Shah and Justice Munib Akhtar, being members of the committee, formally addressed a letter to CJP Afridi, urging him to hold a meeting under the Supreme Court Practice and Procedure Act 2023. The two senior justices requested the meeting specifically to address the petitions contesting the 26th Amendment, which involves changes to judicial authority and tenure. With no response from the CJP, Justices Shah and Akhtar held an independent meeting in Justice Akhtar's chambers to determine the next steps. Following this private session, the two justices decided by majority vote to fix the petitions against 26th Amendment before a full court on November 4 last year. Despite their decision, no cause was issued. As minutes of committee meeting has been issued on the SC website, CJP Afridi's note is also attached wherein he gave justification for not constituting the full court. The CJP said that the constitutional mandate vesting jurisdiction to any bench in the Supreme Court to hear a petition under Article 184 of the Constitution is but very clear. The CJP had personally sought the opinion of all 13 judges of the Supreme Court, with nine favouring a constitutional bench over a full court for hearing challenges to the amendment. The disclosure came as part of the CJP's detailed communication addressing the concerns of justices Shah and Akhtar regarding the bench composition for a key constitutional matter. The CJP stressed that the decision reflected the collective preference of the court's majority and that he had acted in good faith to preserve institutional harmony. Freshly disclosed minutes of judges' committee meetings covering the period from October 31, 2024, to May 29, 2025, provide a rare glimpse into the apex court's inner sanctum, laying bare a paper trail of legal hair-splitting, procedural manoeuvring and judicial diplomacy surrounding one of the most politically charged amendments in the country's recent memory. According to the disclosures, the chief justice informed Justices Mansoor Ali Shah and Munib Akhtar of the majority view, cautioning that convening a full court could undermine collegiality among judges and expose the court to public criticism, as had happened in the recent past. The paper trail begins with an October 31, 2024 meeting in Justice Munib Akhtar's chambers, where Justices Munib Akhtar and Mansoor Ali Shah proposed listing the case before the full court on November 4. They acted on the perception that the chief justice was not convening a judges' committee meeting on the matter. Later, in a November 5, 2024 letter, CJP Afridi cited Article 191A and sub-clause 4 to stress that only the judges' constitutional committee could fix such cases for hearing, and that petitions under Article 184(3) must go to a constitutional bench, not a full court. He disclosed that he had privately canvassed the views of all 13 judges and nine agreed with his position, and these findings were shared with the two 'brother judges' advocating otherwise. Warning that convening a full court in this instance could fray the spirit of essential collegiality and invite public criticism, as had occurred in the recent past. Later that afternoon, the CJP's office received letters from the two judges, sealed and delivered to the Judicial Commission of Pakistan (JCP) secretary for safekeeping until the commission's November 5 meeting. At the meeting, the CJP proposed that the commission, excluding himself, nominate members of the constitutional bench to hear the petitions, in line with Article 191A(3)(a). November 26, 2024: committee vote In a regular judges' committee meeting chaired by CJP Afridi and attended by Justice Shah and constitutional bench head Justice Aminuddin Khan, Justice Shah again proposed convening a full court. The majority, Afridi and Khan, decided that the CB would hear the case. January 17, 2025: tax case controversy At a subsequent committee meeting, Justice Shah was absent but had earlier submitted his views on a tax-related constitutional interpretation case, suggesting it could be heard by a regular bench instead of a constitutional bench. The CJP noted that the tax case had originally been set for January 27 before a regular bench, but a conflicting order scheduled it for January 16. By a 21 majority, the committee decided to transfer the case to a CB and ruled that all cases involving constitutional questions must go to the CB unless a regular bench had already issued an order. January 24, 2025: midnight roster dispute Later, Justice Shah's letter, also made public, describes his objection to being informed at 9:33 pm, via his secretary, that a six-member larger bench, headed by Justice Jamal Khan Mandokhail, had been formed to hear an intra-court appeal. Shah says he had earlier agreed in an informal meeting to a five-member bench of senior judges, excluding any with conflicts of interest. According to Shah, the CJP had suggested a four-member bench, but later that night, at 9:30 p.m. via WhatsApp, he was asked to approve a six-member bench. He objected, noting that two of its members — Justices Mandokhail and Muhammad Ali Mazhar — were part of the constitutional bench and therefore should not hear the case. Shah added that the case file was never provided to him. May 20, 2025: delegation of powers debate In a three-member committee meeting, Justice Shah argued that powers under the Supreme Court (Practice and Procedure) Act, 2023, could not be delegated to the registrar, as the Act contained no such provision. He suggested replacing the word "quorum" with "majority" and filling vacancies with the next most senior judge.
