The wisdom and conduct of the Chief Justice of Pakistan is under the spotlight. His decision not to fix the high-profile case pertaining to the 26th constitutional amendment before the full court, as per lawful dictum, is now under legal and public scrutiny. It is a foregone conclusion, however, that Chief Justice Yahya Afridi squarely deviated from the laid-down rules in the Practice and Procedure Act of 2023, and rather opted for consulting all the judges on the prima facie of its hearing.
Established under the Act, the three-member committee had, as per regulations, ordered the petitions challenging the amendment to be fixed before a full court on November 4, 2024, but the chief justice overrode it and the rest is history. The vital piece of legislation, which has literally torpedoed the functioning of organs of the state, is yet to get a judicial review as it lingers with the Constitutional Bench.
The point that makes it ultra vires is that the Constitutional Bench is part of the challenged amendment, and thus it cannot sit in judgment until and unless the legislation’s lawful status is decided. Moreover, how could the beneficiaries of the amendment decide about its future? Thus, lawyers and civil society are rightly questioning the rationale behind avoiding a full court hearing when there are precedents in such cases of public importance.
The fact that the chief justice reportedly consulted each and every judge individually over the issue makes it mysterious. It points a finger at his conduct and outcome as to who will determine how many judges had opposed and what question was placed before each judge. The top judge has unnecessarily amassed criticism of his high office, and the need of the hour is to go back to the book and let the full court decide it.
The judicial stream, of late, is quite wayward and all it needs is to stick to the dictates of the Constitution. A solemn hearing of the 26th amendment by the full court will not only put to rest legal veracity but also help restore judicial confidence among the masses.
