- Justice Ayesha Malik asks if 26th Amendment’s Article 191A means a full court can no longer be constituted
- Bench examines whether Constitutional Bench can direct JCP to include all judges, or if it has authority to form a full court or must refer the issue to the CJP or JCP
ISLAMABAD: Justice Ayesha Malik on Wednesday raised a pivotal question about whether Article 191A of the Constitution, introduced through the 26th Amendment, effectively bars the formation of a full court of the Supreme Court—as the Constitutional Bench (CB) resumed hearing petitions challenging the amendment.
The observation came as the eight-judge CB, headed by Justice Aminuddin Khan, continued hearing multiple petitions seeking to annul the 26th Amendment, which restructured the apex court’s powers, including curbs on suo motu jurisdiction and changes in the appointment process of the Chief Justice of Pakistan (CJP).
Under the 26th Amendment, passed during an overnight joint sitting of Parliament in October last year, the CJP’s tenure was fixed at three years, and the Judicial Commission of Pakistan (JCP) was empowered to nominate judges for a newly created “Constitutional Bench” to hear all constitutional matters. The legislation also gave a Special Parliamentary Committee the authority to appoint the CJP from among the three most senior judges.
During Wednesday’s proceedings, Justice Ayesha questioned whether the addition of Article 191A meant that “a full court can no longer be convened” and asked, “Are we saying that the Judicial Commission ranks above the Supreme Court?”
Senior lawyer Abid Shahid Zuberi, who continued arguments for the fourth consecutive hearing, maintained that a 16-member full court should hear the case, as that was the SC’s strength when the amendment was passed. Other petitioners—including Hamid Khan, Munir A. Malik, and Barrister Salahuddin Ahmed—have made similar requests.
The bench, however, repeatedly questioned whether the CB had the power to order the formation of a full court or to direct the JCP to nominate all sitting judges to the constitutional bench. Justice Mandokhail observed that “the SC could reverse any unconstitutional decision by the JCP,” while Justice Mazhar agreed with Justice Ayesha’s interpretation that a full court should not be deemed unconstitutional under Article 191A.
Justice Mazhar noted, however, that “the Constitutional Bench can hear the case of the 26th Amendment,” and if needed, “all judges of the Constitutional Bench can be included,” but cautioned against “selecting some judges and excluding others.”
Justice Aminuddin remarked that constitutional provisions “must be read as written,” warning against subjective interpretations. The bench asked Zuberi to clarify whether the matter should be referred to the CJP or the JCP if all judges were to be included in the bench.
The 26th Amendment remains one of the most contested legislative changes to Pakistan’s judicial structure, with critics arguing that it undermines judicial independence and subjects the appointment of the CJP and SC benches to parliamentary and executive influence.
The hearing was adjourned till October 20 (Monday).
