Reserves seats review hearings: SC urged to include original bench judges

ISLAMABAD: The Supreme Court urged that the judges, who were members of the original bench that passed the judgement on reserved seats, and are presently available, be included in the bench for hearing of review petitions.

The Sunni Ittehad Council (SIC) on Friday filed three miscellaneous petitions, including an objection to the bench, for a live broadcast of the proceedings, and to decide 26th Constitutional Amendment case before the reserved seats case. It is further prayed that the review bench be headed by Chief Justice of Pakistan (Yahya Afridi).

A full Court comprising 13 available judges of the Supreme Court namely, Qazi Faez Isa (ex-CJP), Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi (incumbent chief justice), Justice Amin-ud Din Khan, Justice Jamal Khan Mandokhel, Justice Muhammad Ali Mazhar, Justice Ayesha A Malik, Justice Athar Minallah, Justice Sayed Hassan Azhar Rizvi, Justice Shahid Waheed, Justice Irfan Saadat Khan and Justice Naeem Akhtar Afghan on July 12, 2024 delivered the judgment on reserved seats.

Eight judges, headed by senior judge Justice Mansoor Ali Shah, gave a majority opinion, while Justice Yahya Afridi wrote a separate note, neither dissenting nor agreeing entirely with the majority opinion. Justice Qazi Faez Isa and Justice Jamal Khan Mandokhel wrote a partly dissenting opinion. Justice Amin uddin Khan and Naeem Akhtar Afghan wrote strong dissenting opinion.

The petitioner contended that the review petitions, filed by Pakistan Muslim League-Nawaz (PML-N), Pakistan Peoples’ Party (PPP) and Election Commission of Pakistan (ECP), remained pending contrary to the normal practice of the apex court of fixing the review petitions within three months of the judgement sought to be reviewed. There is a strong apprehension that the delay was deliberate on the part of the previous Chief Justice who was perhaps waiting for the 26th amendment.

He submitted that after the Supreme Court has been fully packed with 23 permanent judges, one Acting Judge and two Ad-hoc judges, these review petitions were fixed on 06 May 2025 before a bench of 13 judges after lapse of nearly ten months of the impugned judgement.

He stated that the 13-member bench so constituted did not include six judges – Justice Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Justice Athar Minallah, Justice Shahid Waheed and Justice Irfan Saadat Khan – who had heard and decided the case. These judges are all available in the Supreme Court. In their place six judges namely Justice Musarrat Hilali, Justice Aqeel Ahmed Abbasi, Justice Shahid Bilal Hassan, Justice Muhammad Hashim Khan Kakar, Justice Salahuddin Panhwar, Justice Aamer Farooq and Justice Ali Baqar Najafi, who were not members of the original bench, have been included.

The petitioner contended that it is well settled that there is stark difference between an appeal and review jurisdiction inasmuch as a review petition/application is heard by the same bench which passed the judgment. An appeal is a continuation of the original proceedings while review jurisdiction is governed by Article 188 of the Constitution read with the Supreme Court Rules, 1980.

It submitted that Rule (8) of Order XXVI of the Supreme Court Rules, 1980 provides that a review application shall be posted before the same Bench which delivered the judgement, while Article 188 expressly provides that such jurisdiction is to be exercised in accordance with Rules.

He stated that the original provision as passed by the Constituent Assembly, while 191 A (5) passed by the Parliament lacked legitimacy and moral authority, therefore, as there is a patent conflict between the provisions of Article 188 and Article 191 A (5) of the Constitution, the later provision to the extent of placement of review applications before the Constitutional Bench is void and ultra vires the Constitution.

It submitted that a Constitutional Bench is chosen by the Executive or a party to the lis (PML-N and PPPP) has appointed members to the Judicial Commission of Pakistan. It is stated that Article 191 (5) in so far as it transferred review jurisdiction to the Constitutional Bench is in conflict with Article 10 A of the Constitution and thus void.

The petitioner claimed that the Judicial Commission of Pakistan that constitutes “Constitutional Bench” is virtually under the control of the Executive and thus can control the exercise of the jurisdiction of the Supreme Court.

Copyright Business Recorder, 2025