NATIONAL

‘Challenges to 26th Amend’: Justice Mazhar likens benches to ‘branches of one tree’

By Staff Report
  • Justice Aminuddin Khan-led eight-member bench hears 37 petitions challenging 26th Constitutional Amendment
  • Justice Hilali asks whether reverting to a full bench would require ‘suspending’ Article 191A, introduced through the Amendment
  • Judges debate whether Constitutional Bench can refer matter to full court, weigh scope of Article 191A and bench powers

ISLAMABAD: Justice Muhammad Ali Mazhar on Tuesday observed that the Supreme Court’s regular and Constitutional Benches (CBs) were “branches of one tree” as an eight-member CB resumed hearing over three dozen petitions challenging the 26th Constitutional Amendment—a law that redefined the apex court’s powers and structure.

The Amendment, passed by Parliament in an overnight session in October last year, has drawn sharp criticism from the opposition and legal community. The PTI alleged that seven of its lawmakers were abducted to secure votes in favour of the legislation, while the BNP-Mengal claimed its two senators were coerced before they broke ranks to support it.

The 26th Amendment curtailed the Supreme Court’s suo motu powers, fixed the chief justice’s term at three years, and authorised a Special Parliamentary Committee to appoint the CJP from among the three most senior judges. It also paved the way for forming Constitutional Benches—one of which is now hearing challenges against the very amendment that created it.

According to the court’s cause list, the CB has taken up 37 petitions questioning both the procedure and substance of the law, including its implications for judicial independence.

The hearing

The eight-member bench is headed by Justice Aminuddin Khan and includes Justices Muhammad Ali Mazhar, Jamal Khan Mandokhail, Ayesha Malik, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhtar Afghan and Shahid Bilal Hassan.

During Tuesday’s proceedings, retired Justice Syed Shabbar Raza Rizvi, a former Lahore High Court judge, concluded his arguments, while Dr Adnan Khan, counsel for petitioner Mohammad Anas, also presented his contentions. The hearing was adjourned till 11:30am Wednesday.

As arguments continued, Justice Mandokhail observed that if the petitioner’s stance was accepted—that the Supreme Court and the CB were distinct—it would mean the bench retained suo motu powers that had otherwise been removed from the court. Justice Rizvi countered that the Amendment conferred powers on the CB without taking any away from the Supreme Court.

Justice Musarrat Hilali pointed out that Article 191A, introduced through the Amendment, had “brought the Constitutional Bench into existence” and asked whether reverting to a full bench would require “suspending” the Amendment itself. Justice Mazhar noted that the powers under Article 184(3)—the SC’s original jurisdiction—had been transferred to the CB under Article 191A, which “clearly mentioned” the same.

Rizvi cited previous judgments to argue that Article 191A should be read alongside Article 176 (constitution of the Supreme Court) and not in isolation. He also drew parallels with the Federal Shariat Court’s powers under Article 187, saying both institutions could exercise authority “to ensure complete justice.”

Justice Mazhar agreed that the CB operated within the Supreme Court’s structure, adding, “Regular bench and Constitutional Bench—both are two branches of one tree.”

Debate over full court

At several points, the judges questioned whether the CB had the authority to constitute a full court. Justice Aminuddin asked, “Are you saying we should give power to those judges who do not have it under the law?” Rizvi responded that the CB could refer the matter ahead, but the judge noted that the CJP—to whom such a reference would ordinarily go — was not part of the current CB.

Justice Mandokhail wondered whether the petitioner was implying that only a full court could hear the case. Justice Mazhar cited India’s example, noting that constitutional benches there were not referred to regular benches even though the CJP remained the “Master of the Roster”—a concept no longer applicable in Pakistan.

Later, Dr Adnan Khan argued that both a full court and the CB could hear the case, but “collective wisdom” favoured a full court. He said the amendment had disrupted judicial conventions, urging the bench to “let the collective wisdom of the Supreme Court prevail over that of Parliament.”

The judges also discussed the Judicial Commission of Pakistan’s composition and role in bench formation, with Justice Aminuddin quipping, “Look at our patience; we are continuously hearing lies while sitting here.”

The proceedings were live-streamed on the Supreme Court’s YouTube channel, part of the Court’s ongoing public coverage of the case since October 8.

Background and petitions

So far, senior lawyers Hamid Khan, Munir A. Malik, Barrister Salahuddin Ahmed, and Abid Shahid Zuberi have called for a 16-member full court, matching the strength of the Supreme Court when the Amendment was passed in October 2024.

The petitioners—including several bar associations, political parties, and lawyers—have sought to strike down the 26th Amendment in whole or in part, arguing it was passed through coercion and undermines judicial independence, a “salient feature” of the Constitution.

They have also challenged related laws—the Practice and Procedure Act 2024 and the Supreme Court (Number of Judges) Act 2024—calling them unconstitutional, as they stem from an “invalid” amendment.

The Court is expected to first decide whether the matter should be heard by a full court comprising all available judges or continue before the current eight-member CB before proceeding to the merits of the constitutional challenge.

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