- Eight-member CB resumes hearing on 26th Amendment amid calls for full court formation
- Justice Ayesha Malik notes Article 191A ‘vests powers within SC, not removes them’
- Next hearing on Nov 10 to decide whether CB or full court will rule on amendment’s legality
ISLAMABAD: Justice Shahid Bilal Hassan on Thursday observed that disregarding Article 191A—the constitutional clause under which the Supreme Court’s Constitutional Bench (CB) was constituted through the 26th Amendment—would amount to granting the petitioners “final relief.”
His remarks came as an eight-member Constitutional Bench, headed by Justice Aminuddin Khan, resumed hearings on more than three dozen petitions challenging the 26th Amendment, which was passed by Parliament during an overnight session in October last year.
The petitions, filed by bar associations, legal councils, political parties including the Pakistan Tehreek-i-Insaf (PTI), and individual lawyers, question both the process and substance of the constitutional changes. They argue that the amendment undermines judicial independence and violates the basic features of the Constitution.
Background and key provisions
The 26th Amendment—widely debated since its passage—introduced far-reaching changes to the structure and authority of the judiciary. It removed the Supreme Court’s suo motu powers, fixed the Chief Justice of Pakistan’s tenure at three years, and empowered a Special Parliamentary Committee to appoint the Chief Justice from among the three most senior judges of the apex court.
It also created a new Article 191A, providing constitutional backing for the establishment of a Constitutional Bench within the Supreme Court and high courts to decide matters involving constitutional interpretation.
Parliament passed the legislation amid controversy, with opposition parties and legal experts alleging that it was rushed through without proper deliberation. The PTI claimed that seven of its lawmakers were abducted to secure their support, while the Balochistan National Party-Mengal (BNP-M) accused the government of pressuring two of its senators who later voted in favour of the bill.
Since then, the law has been a lightning rod for debate, with many calling it an encroachment on judicial independence, while others see it as an attempt to introduce institutional accountability.
Thursday’s proceedings
At the outset of the hearing, the bench—comprising Justices Jamal Khan Mandokhail, Mohammad Ali Mazhar, Ayesha Malik, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhtar Afghan and Shahid Bilal Hassan besides Justice Aminuddin—took up the petitions for detailed arguments.
Retired Justice Shahid Jamil Khan, a former Lahore High Court judge who resigned four years before completing his tenure, appeared at the rostrum and informed the court that his client had sought implementation of the Practice and Procedure Committee’s decision.
Justice Mandokhail asked whether he had filed a separate petition against the 26th Amendment. Justice Jamil replied that he had, but requested that his arguments be heard toward the end of the proceedings due to an upcoming trip abroad on November 2. The bench agreed to accommodate his request.
The main arguments were then presented by Advocate Uzair Bhandari, counsel for the Sunni Ittehad Council (SIC), who said he would explain the “current value” of the 26th Amendment. However, before delving into the substance, Justice Mandokhail directed him to clarify which bench was competent to hear the case.
Bhandari acknowledged the bench’s concern that Article 191A—the very provision that created the Constitutional Bench—might restrict the case from being referred to a full court. “The bench considers that Article 191A bars it from referring the matter to a full court,” he observed.
Justice Hassan then asked the counsel to define what constituted a full court, to which Justice Mandokhail added humorously, “We would like to know whether a full court is formed by wishes or by law.”
Bhandari replied that full courts “always exist” under Article 176, which defines the constitution of the Supreme Court, asserting that it was a matter of law, not discretion. He echoed arguments earlier made by senior lawyers Munir A. Malik and Dr Adnan Khan.
Justice Mandokhail then asked if the full court had been defined in the Constitution or merely developed through precedent. The counsel maintained that its definition could be inferred from Article 176.
At this point, Justice Mazhar raised a key question: “How can Article 191A, through which this bench was constituted, simply be ignored?”
Bhandari responded that even if a court’s authority was limited, it retained the power to refer a matter to the competent forum. Justice Mazhar, however, reiterated that the foundation of the CB rested entirely on Article 191A, and ignoring it would undermine the very legality of the proceedings.
Justice Hassan cautioned, “You are asking us to ignore Article 191A while at the same time seeking an order from this bench. If we ignore it, that would amount to granting you final relief.”
Bhandari clarified that he had not sought suspension of the 26th Amendment. “If the amendment were suspended,” he said, “this bench would have no authority to hear any case.”
Justice Mazhar emphasized again that all judges presently sitting on the bench derived their mandate under Article 191A. Justice Afghan then asked, “What forum, then, can declare Article 191A right or wrong?”
The SIC counsel responded that the Supreme Court itself had jurisdiction to hear the case, arguing that declaring the provision invalid would not automatically suspend the amendment but would question its legitimacy.
Justice Aminuddin Khan, however, observed that such a move “would effectively amount to suspending the 26th Amendment”.
Light moments and key observations
At one point, Bhandari noted that only “the lordships” on the bench were posing questions, to which he added, “The ladyships have not asked any.”
Justice Musarrat Hilali quipped, “That’s because we’ve already understood the matter,” prompting laughter in the courtroom. Justice Mandokhail added, “The women judges are sharper than me.”
Justice Ayesha Malik later clarified an important point: “Article 191A is not taking away anyone’s powers. It is vesting them within the Supreme Court. No jurisdiction has been taken away anywhere.”
The counsel cited an example from the United States, where a judge once remarked that the Supreme Court as an institution, not its benches, possessed jurisdiction over all matters. Justice Mandokhail responded, “Here, the Supreme Court has delegated powers to its benches.”
The hearing was adjourned till November 10, when Advocate Bhandari will resume his arguments. Justice Aminuddin noted that if the current bench was unavailable on that date, a new hearing schedule would be issued.
Petitions for full court
So far, senior lawyers Hamid Khan (Lahore High Court Bar Association), Munir A. Malik (Balochistan High Court Bar Association), Khwaja Ahmed Hosain, Barrister Salahuddin Ahmed, and Abid Shahid Zuberi have all requested the formation of a 16-member full court, representing the judges serving in the Supreme Court when the 26th Amendment was enacted in October 2024.
Other counsel have argued for a 24-member full court, reflecting the current strength of the apex court, including six judges appointed after the amendment’s passage.
The petitioners contend that the Constitutional Bench lacks authority to decide the matter because its very existence stems from a provision—Article 191A—that is under challenge. The judges have repeatedly questioned whether the CB possesses the power to order the formation of a full court, as demanded by the petitioners.
The proceedings, live-streamed on the Supreme Court’s YouTube channel since October 8 at the petitioners’ request, will first determine whether the challenge should be heard by a full court or the existing CB before moving to the substantive question of the amendment’s legality.
Grounds of challenge
The petitioners have urged the apex court to strike down the entire 26th Amendment, arguing that it was passed without the constitutionally required two-thirds majority of the “lawfully elected membership” of each house of Parliament under Article 239.
In the alternative, they have asked the court to invalidate specific provisions that allegedly undermine judicial independence — a salient feature of the Constitution. These include:
Articles 175A(1) and 175A(18)–(20) introducing annual performance evaluations of high court judges by the Judicial Commission of Pakistan (JCP);
The substitution of Article 175A(3) concerning appointment of the Chief Justice of Pakistan; and
Provisions enabling formation of constitutional benches in the Supreme Court and high courts.
The petitioners have further challenged the constitutionality of the Practice and Procedure Act, 2024, and the Supreme Court (Number of Judges) Act, 2024, terming them void ab initio, as both laws stem from the contested amendment and allegedly represent an attempt to achieve “unconstitutional designs.”
Next steps
The bench will, in its next sitting, continue to hear arguments on whether the Constitutional Bench has the jurisdiction to examine the amendment that created it, or whether the matter must be placed before the full court.
Once this preliminary issue is resolved, the Supreme Court is expected to proceed to the merits of the 26th Amendment, whose implications for the balance of power between Parliament and the judiciary remain among the most consequential constitutional questions in recent years.
