- Eight-judge Constitutional Bench resumes hearing over three dozen petitions against 26th Amendment
- Justice Ayesha terms Article 191A ‘procedural’, says limits apply to benches not SC
- Judges debate whether Constitutional Bench can order full court formation
- Hearing adjourned till Thursday as court to decide on jurisdiction question first
ISLAMABAD: Supreme Court’s Justice Ayesha Malik on Wednesday observed that there was no constitutional bar on a full court bench to hear a case already fixed before the Constitutional Bench (CB) under Article 191A, introduced through the 26th Constitutional Amendment.
She made the remarks as an eight-member Constitutional Bench resumed hearing more than three dozen petitions challenging the 26th Amendment—a far-reaching piece of legislation that altered the apex court’s powers, the tenure of the chief justice, and the procedure for judicial appointments. The case is widely seen as one of the most consequential constitutional challenges since the 18th Amendment.
The 26th Amendment was passed by Parliament during an overnight session in October 2024 amid controversy and opposition protests. The Pakistan Tehreek-i-Insaf (PTI) claimed that seven of its lawmakers had been “abducted” to secure their votes, while the Balochistan National Party-Mengal (BNP-M) alleged its senators were pressured to support the bill. The government maintained that the changes were aimed at “institutional balance” and “democratic oversight.”
Amendment’s key provisions
The amendment curtailed the Supreme Court’s suo motu powers under Article 184(3), set the chief justice’s tenure at three years, and created a Special Parliamentary Committee empowered to select the CJP from among the three most senior judges. It also provided for the establishment of constitutional benches in the superior courts to exclusively hear constitutional matters—a mechanism now at the center of the legal challenge itself.
Since October 8, the proceedings have been live-streamed on the Supreme Court’s YouTube channel at the petitioners’ request, drawing widespread public interest.
Hearing resumes amid technical glitch
Wednesday’s hearing, chaired by Justice Aminuddin Khan, included Justices Ayesha Malik, Muhammad Ali Mazhar, Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhtar Afghan, and Shahid Bilal Hassan. The bench resumed arguments after a brief delay caused by an audio issue in the live stream, which was later rectified.
Advocate Khwaja Ahmad Hosain, representing veteran politician Afrasiab Khattak, continued his submissions, urging that the matter be referred to a full-court bench comprising all available Supreme Court judges. He argued that the judiciary’s reputation “does not depend on the 26th Amendment” and that an “independent full court” should hear the challenge to a constitutional provision affecting the entire institution.
Exchange on bench’s authority
Justice Mandokhail interjected, asking whether the counsel distrusted the existing bench. Hosain clarified that he did not question the judges’ independence but maintained that, procedurally, “a decision on Article 191A—which created this Constitutional Bench—should be taken by the original full court.”
Justice Rizvi noted that Hosain’s petition explicitly mentioned the phrase “original full court.” Justice Mandokhail pressed the point further: “You yourself said that the case should be before another independent bench. Will we be included in that independent bench?”
Presiding judge Justice Aminuddin Khan added, “Would the Chief Justice of Pakistan, Justice Yahya Afridi, be a part of that independent bench?” to which Hosain replied in the affirmative.
Justice Mandokhail then questioned the counsel: “If this bench cannot hear the case, how could it issue any order?” Hosain responded that the federal government had not raised any objection to either a full court or the present bench issuing directions. “Why is the court seeking a path to issue an order?” he asked.
Justice Aminuddin observed that lawyers had advanced differing constitutional interpretations and that the bench’s questions stemmed from the need to test those arguments. Justice Mandokhail added that some counsel had even suggested “keeping the amendment aside.”
Debate on the scope of Article 191A
At one point, Justice Mazhar remarked that if all 26 judges of the Supreme Court were included, “it would become a regular bench rather than a constitutional one.” Hosain agreed.
Justice Mandokhail referred to arguments made a day earlier by Dr Adnan Khan, who had contended that the Supreme Court and the Constitutional Bench were separate entities. Justice Mazhar added that some lawyers believed other judges could still be inducted into the current bench. Hosain countered that the CB itself remained a bench of the Supreme Court.
Justice Ayesha Malik then directed the counsel to read Article 191A alongside Clause 3, which stipulates that “no bench of the Supreme Court other than a Constitutional Bench shall exercise” the jurisdictions listed under Article 184, including the court’s original jurisdiction.
She observed that the text merely specified which bench could exercise certain powers; it did not bar a full court from doing so. “For some reason, we read it as an ouster—that no one else will hear it. It simply says no other bench will do it,” she said.
Justice Ayesha elaborated that even if Article 191A were interpreted restrictively, it only meant that the CB would hear cases invoking the Supreme Court’s original jurisdiction and constitutional interpretation. “Where is the bar?” she asked. “If the CB interprets the Constitution and determines that a full court may hear a constitutional amendment case, would that not make sense?”
She reiterated, “I, in the first case, said I don’t see a bar,” describing Article 191A as a procedural provision that imposed limits on benches but not on the Supreme Court as an institution.
Counsel: ‘Judges’ powers remain intact’
Justice Mazhar expressed complete agreement with Hosain’s contention that a 16-member full bench would be a regular bench rather than a CB. The lawyer argued that the judges’ inherent powers to interpret the Constitution had not been curtailed. “If Parliament tomorrow decides under a 27th Amendment that an executive officer will preside over the Supreme Court, will you not be able to review it? You certainly can,” he said.
Hosain further contended that the 26th Amendment had not been passed following proper constitutional procedure—a question, Justice Mazhar noted, that could be addressed when the attorney general for Pakistan (AGP) presents arguments on the merits.
When Justice Hasan Azhar Rizvi remarked that the petition sought the “main relief,” Hosain clarified, “My civil miscellaneous application does not seek to strike down the 26th Amendment. It simply requests that these petitions be sent to the original full court—and there is nothing stopping your lordships from doing that.”
Justice Mandokhail posed a hypothetical: “If a constitutional amendment removes the Supreme Court’s jurisdiction altogether, who will hear the challenge?” He then observed that even in such a case, “the same Supreme Court will hear it,” recalling previous submissions that the CB lacked competence to review the very amendment that created it.
Hosain concluded by urging the bench not to “underestimate its power,” asserting that the CB could refer the matter to a full court without violating Article 191A. The hearing was adjourned until Thursday at 11:30 a.m.
Petitions for full court formation
So far, Hamid Khan (Lahore High Court Bar Association), Munir A. Malik (Balochistan High Court Bar Association), and petitioners Barrister Salahuddin Ahmed and Abid Shahid Zuberi have formally requested the constitution of a 16-member full court, corresponding to the number of sitting judges in October 2024 when the amendment was enacted.
The bench must first decide whether it has authority to order the formation of a full court before proceeding to hear the substantive challenges.
Grounds of challenge
Petitioners—including multiple bar associations, the PTI, and individual lawmakers — have argued that the 26th Amendment violates the independence of the judiciary, a salient feature of the Constitution. They contend that Parliament failed to meet the two-thirds requirement under Article 239, as some votes were allegedly coerced or cast by members whose election disputes were unresolved.
Alternatively, they have urged the court to strike down specific provisions that introduce annual performance evaluations of high court judges by the Judicial Commission of Pakistan (JCP), change the method for appointing the CJP, and establish Constitutional Benches in the Supreme Court and high courts.
Petitioners have also asked the apex court to declare the Supreme Court (Practice and Procedure) Act 2024 and the Supreme Court (Number of Judges) Act 2024 unconstitutional, arguing that both stem from an “invalid” amendment and represent an attempt to subordinate the judiciary to political influence.
The hearings will continue on Thursday, when the AGP is expected to present the government’s stance on whether the Constitutional Bench may itself decide to constitute a full court.
