ISLAMABAD: The Supreme Court`s Constitutional Bench (CB), hearing a set of review petitions against the July 12, 2024 majority judgement on reserved seats, deliberated on Tuesday primarily on whether the two judges who had dismissed these petitions on the first day of the hearing should continue to sit on the bench.

Senior counsel Faisal Siddiqi argued before the 11-judge bench that the two judges who had dismissed the review petitions should not be excluded and must remain on the bench, thereby making the CB a 13-judge bench, as originally constituted for hearing the review petitions -unless the judges explicitly recuse themselves.

Justice Aminuddin Khan, who headed the Constitutional Bench, reiterated that the present bench reduced from 13 to 11 judges was reconstituted at the request of the two judges, reminding the counsel that he was not privy to many of the internal developments.Justice Muhammad Ali Mazhar, however, asked the counsel to read the 11-judge majority order dated May 6, which was also signed by the two judges who had dismissed the review petitions during the preliminary hearing.

The majority order had referred the matter back to the committee for reconstitution of the present bench under Article 191A of the Constitution, which governs the fixing of cases before the CB.

While issuing notices to the attorney general for Pakistan (AGP) and the advocates general of the provinces, the majority order had also held that the dissenting judgment of the two judges would be counted at the conclusion of the hearing.

`This order was signed by all 13 judges of the CB, in which Justice Ayesha A. Malik gave her reasons, whereas Justice Ageel Ahmed Abbasi dismissed the review petitions in limine,` Justice Mazhar recalled, adding that since they had already rejected the review petitions, how could they now deliberate, what observations would they make during the proceedings, or would they merely remain seated as silent spectators.

Bitter past experience Justice Mazhar explained that the 11-judge order stating that the judgement of the two judges would be counted was made only to avoid the bitter past experience whenthe controversy over the four-three majority erupted in the Punjab elections case.

It is not a case of recusal they have already dismissed the review petitions.

Rather, it is a case of independent application of mind, Justice Mazhar emphasised, adding that after the 26th Constitutional Amendment, the committee under Article 191A has assumed the role of the master of the roster from the chief justice of Pakistan.

Even if the two judges were asked to rejoin the present hearing, it was not possible, since one of the judges who dismissed the review petitions was out of the country, he said.

They could be invited again, the counsel replied, but Justice Khan suggested that the counsel should send invitation letters to the two judges himself.

In a lighter vein, Justice Musarrat Hilali asked the counsel to arrange an air ticket so that she could go herself to the US and bring one of the judges back home.

Justice Hilali wondered since the two judges had already touched upon the merits of the case while dismissing the review petitions, what new points they would raise while sitting on the bench.

The counsel, however, suggested that the present case could be kept pending like death penalty cases, which still await hearing.

Referring to the four-three controversy, Justice Jamal Khan Mandokhail, in alighter vein, questioned whether this was the same case in which the order of the court was still awaited.

The counsel, however, explained that the two judges could still change their minds if they continued sitting on the bench, adding that every judge has the right to recuse himself from a hearing. The counsel contended that once the bench was constituted, unless expressly recused, its members cannot be excluded.

He also cited a number of SC judgments, such as the Panama judgement and the interpretation of Article 63A, in which the original judges were included in the final determination of the case.

The counsel emphasised that unless the committee under Article 191A of the Constitution frames new rules, the existing Supreme Court Rules, 1980, will remain applicable, since only new rules can override older procedures. As no fresh rules have been made, the review petitions moved under Article 185 of the Constitution should be assigned to the regular bench, instead of the Constitutional Bench, for hearing.

He stressed that no radical departure has been made in the SC`s structure after the 26th Amendment. Only the assignment of cases to the CB has changed, while all the judges of the Supreme Court remain judges of the top judiciary, and no separate courthas been formed only a different bench of the Supreme Court has been constituted after the amendment, the counsel said.

The jurisdiction will remain vested in the SC, though constitutional matters will now be decided by the CB. Tomorrow, the entire bench of the apex court may be designated as CB judges, the counsel added.

Seniority dispute Advocate Idrees Ashraf, representing PTI founder Imran Khan and Raja Mugsid, argued before a separate five-judge CB hearing the inter se seniority dispute among Islamabad High Court judges that by transferring three judges from different high courts, a distinct class of judges had been created permanent judges and transferred judges -when no differential treatment should be accorded to different classes of judges within the high court.

The counsel contended that the framers of the Constitution did not intend the permanent transfer of judges to another high court.

Moreover, the transfer notifications of the judges did not specify the duration of their service at the IHC.

Earlier, senior counsel Hamid Khan, representing the Lahore High Court Bar Association and the Lahore Bar Association, also concluded his arguments. The case will resume on Wednesday.