ISLAMABAD: When the Supreme Court resumes proceedings on challenges to the 18th and 21st Amendments on Tuesday, Chief Justice Nasirul Mulk, who presided over earlier hearings in the case, will not be on the bench because he is not feeling well.

Justice Anwar Zaheer Jamali will preside over the three-judge bench that will include Justice Sheikh Azmat Saeed and Justice Mushir Alam.

The challenge to the 18th Amendment made during the last PPP government pertains to the introduction of a procedure for the appointment of superior court judges. Under the 21st Amendment, nine military courts have been set up across the country to try hardened militants. The petitions also refer to the basic structure of the Constitution.

The chief justice, who is being treated after he reportedly suffered a mild cardiac problem, will return to the court on Feb 25 to commence proceedings on several cases listed before his bench.

On Feb 12, the bench headed by the chief justice had decided to jointly hear the petitions pertaining to the two amendments to determine whether the Constitution featured certain salient or basic structure that could not even be touched by parliament.

The bench also hinted that after preliminary hearing and going through the replies which the federal and provincial governments would submit to clarify their stand on the amendments, a full court comprising all the 17 judges might be constituted.

When the bench headed by Justice Jamali will resume the hearing on Tuesday, 42 constitutional petitions would be before it. Of them, 29 petitions are against the 18th Amendment and 13 against the 21st Amendment.

The lead petitioner in the 18th Amendment case is Advocate Nadeem Ahmed who will be represented by senior counsel Muhammad Akram Sheikh. A number of other petitioners, including the Supreme Court Bar Association (SCBA) and Lahore High Court Bar Association (LHCBA) have also challenged the amendment.

The main petition challenging the 21st Amendment has been filed by the LHCBA, to be represented by Advocate Hamid Khan. The Pakistan Bar Council (PBC) and the SCBA have also challenged the recent amendment.

A judgment in the 18th Amendment case has been pending with the Supreme Court for four years, although a full court headed by then chief justice Iftikhar Muhammad Chaudhry had issued an order on Oct 21, 2010 suggesting guidelines for appointment of superior court judges under Article 175-A.

Parliament incorporated almost all the proposals of the Supreme Court into the Constitution through the 19th Amendment.

One of the reasons to jointly hear the petitions apparently was the pending issue before the Judicial Commission of Pakistan of amendments proposed by the Pakistan Bar Council, the premier supervisory body of the lawyers, to the Judicial Commission Rules 2010. They suggested purposeful and meaningful consultation with the representative of the PBC before initiation and sending of the proposed names to the commission by the chief justice concerned.

Published in Dawn February 22nd , 2015

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