- Bench resumes hearing petitions seeking annulment of 26th Amendment amid split over judicial powers
- Justices Mandokhail, Ayesha differ over procedure for framing SC Rules 2025
- AGP urges restraint after exchange between judges over administrative process
- Hearing adjourned till Wednesday as court have to decide whether full court or CB will hear case
ISLAMABAD: Senior lawyer Abid Shahid Zuberi on Tuesday told the Supreme Court’s Constitutional Bench (CB) that the chief justice of Pakistan (CJP) retained the power to constitute a full court as the apex court resumed hearing multiple petitions challenging the 26th Constitutional Amendment—legislation that redefined the judiciary’s powers and structure.
The eight-member bench, headed by Justice Aminuddin Khan and comprising Justices Jamal Khan Mandokhail, Muhammad Ali Mazhar, Ayesha Malik, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhtar Afghan and Shahid Bilal Hassan, is currently seized with pleas seeking to strike down the 26th Amendment on grounds of undermining judicial independence.
So far, Zuberi, Lahore High Court Bar Association’s Hamid Khan, Balochistan High Court Bar Association’s Munir A. Malik, and petitioner Barrister Salahuddin Ahmed have all urged the court to form a 16-member full bench—the same strength of judges present in October 2024 when the amendment was passed.
The judges questioned whether the existing Constitutional Bench had the authority to direct such an order, noting that this issue must be settled before examining the legality of the amendment itself.
Background of the 26th Amendment
Passed during an overnight parliamentary session in October last year, the 26th Amendment drew strong objections from opposition parties and legal circles. The PTI alleged that seven of its lawmakers were “abducted” to secure votes in favour of the legislation, while the BNP-M accused authorities of coercing two of its senators.
The amendment curtailed the Supreme Court’s suo motu powers, fixed the CJP’s tenure at three years, and authorised a Special Parliamentary Committee to appoint the top judge from among the three most senior justices. It also provided the legal basis for establishing the Constitutional Bench now hearing challenges against it.
Proceedings and arguments
As Tuesday’s proceedings began, live streaming was briefly delayed by about 40 minutes due to internet disruptions caused by submarine cable repairs, according to PTCL. Justice Aminuddin remarked that live transmission might not be possible, but the hearing continued with Zuberi’s arguments.
Citing several past judgments, the former Supreme Court Bar Association president argued that the power to form a full court was an “inherent prerogative” of the CJP, not limited by the 26th Amendment or the new Supreme Court Rules 2025.
“A party cannot raise objections against a judge’s inclusion. The judge alone decides whether to hear a case,” he said.
Justice Mandokhail questioned Zuberi’s request for a “full court,” noting that petitioners should instead specify “those judges who were present prior to the amendment.” He also observed that even a 16-member full court would not automatically have the right to appeal.
Zuberi responded that under the Constitution, a right to appeal was not mandatory for decisions based on “collective judicial knowledge.” Justice Ayesha Malik interjected, observing that the Judicial Commission of Pakistan (JCP) could determine whether or not to grant appellate rights, depending on the situation.
The lawyer further submitted that under Order 11 of the new SC Rules 2025, benches were to be constituted by a committee, not solely by the chief justice. Justice Mandokhail pointed out that the rules did not explicitly assign the power of forming benches to the CJP, while Justice Ayesha remarked that full courts had historically been formed under the CJP’s inherent authority.
Judicial exchange over SC Rules
A pointed exchange occurred between Justices Mandokhail and Ayesha Malik over how the new Supreme Court Rules 2025 had been adopted. Justice Mandokhail claimed that all 24 judges were present when the rules were framed, while Justice Ayesha disagreed, saying her written note recorded her objections and absence from that meeting.
“This case cannot proceed unless the matter is clarified,” Justice Mandokhail said, prompting Attorney General for Pakistan Mansoor Usman Awan to caution that the matter was “internal” and should not be debated in open court.
Justice Ayesha reiterated that the Practice and Procedure Committee, created under the amendment, was empowered to form benches for constitutional and suo motu cases but “did not possess the power to make a full court.” Zuberi agreed, adding that this authority lay with the CJP under the court’s inherent jurisdiction.
Justice Aminuddin then asked whether the CJP could form a full court comprising the current CB judges. Zuberi affirmed that “the chief justice’s inherent power remains intact.”
Zuberi cited the 1998 Malik Asad Ali case, arguing that even a three-member bench had previously directed an acting chief justice to constitute a full court, and when he declined, the senior puisne judge had done so.
After hearing the arguments, the bench adjourned proceedings until 11:30am on Wednesday.
Petitions and challenges
The 26th Amendment has been challenged by several bar associations, bar councils, lawyers, the PTI, and individual petitioners. The court is also considering requests for a full court to hear the case, rather than the existing eight-judge CB.
The petitions argue that the amendment was passed without the constitutionally required two-thirds majority of lawfully elected members in each house and thus should be declared void under Article 239.
Alternatively, the petitioners seek the annulment of specific provisions—including those assigning annual performance reviews of high court judges to the JCP, altering the CJP’s appointment process, and formalizing constitutional benches—contending they undermine judicial independence, a salient feature of the Constitution.
The petitions further call for declaring the Supreme Court (Practice and Procedure) Act 2024 and the Supreme Court (Number of Judges) Act 2024 void, asserting that both derive from an “unconstitutional amendment” intended to erode the judiciary’s autonomy.
