ISLAMABAD: A different Supreme Court bench referred a set of challenges to the 18th and the 21st amendments to Chief Justice Nasirul Mulk on Tuesday to be considered by a 17-judge full-court. When constituted, the larger bench will jointly hear and decide petitions challenging the appointment procedure of superior court judges, as well as the establishment of military courts to try hardened terrorists.
Since the chief justice, who conducted earlier hearings, was indisposed, the hearing scheduled for Tuesday was fixed before a different three-judge bench, headed by Justice Anwar Zaheer Jamali.
After brief proceedings, where the court took stock of the rejoinders filed by the federal as well as the provincial governments, the bench decided to refer the matter back to the chief justice to consider constituting a full court. The date for the next hearing will be decided later.
Since the Islamabad Capital Territory (ICT) had not furnished its reply to the challenges, the court asked Advocate General ICT Mian Abdur Rauf to submit the same within three days.
The challenge to the 18th amendment made during the last PPP government involves the introduction of a new procedure for the appointment of superior court judges, whereas under the 21st amendment, nine military courts were set up to try hardened militants throughout the country. Both amendments also involve discussion on the theory that the constitution has an inviolable basic structure.
The lead petitioner in the 18th amendment case is Advocate Nadeem Ahmed, who will be represented by senior counsel Mohammad Akram Sheikh, though a number of other petitioners including the Supreme Court Bar Association (SCBA) and the Lahore High Court Bar Association (LHCBA) have also challenged the amendment. The main petitions challenging the 21st amendment were moved by the LHCBA, to be represented by Hamid Khan. The Pakistan Bar Council (PBC) and the SCBA have also challenged the 21st amendment.
The final judgment in the 18th amendment case has been pending for the last four years, though the full-court headed by then Chief Justice Iftikhar Muhammad Chaudhry had issued an order on Oct 21, 2010, suggesting new guidelines in the mode of appointing superior court judges under Article 175-A of the constitution.
Later, parliament brought about the 19th amendment, accepting nearly all the court’s proposals and incorporating them into the constitution as suggested by the Supreme Court.
At the last hearing on Feb 12, the chief justice, who was heading the bench then, had hinted that he would refer the matter to a full court after receiving all the replies by the respondents.
The court would hear petitions challenging both amendments together and end the controversy by pronouncing a final judgment on the question whether the constitution had a basic structure or not.
During proceedings, the court also hinted at initiating hearing on the 18th amendment first and then proceeding with the 21st amendment.
In its reply regarding the 21st amendment, the federal government has called upon the apex court to respect its decision of trying terrorists under a court martial through the amendment, made in consultation with all the political parties.
Published in Dawn, February 25th, 2015