- Justice Mandokhail says ‘whether willingly or not, SC judges accepted 26th Amend,’ suggesting debate now was largely procedural
- Ex-SCBA president contends a full court could be constituted with available judges and it is ‘not necessary’ for all 15 to sit
- Justice Ayesha cautions petitioners are relying on the same amendment they were challenging
- Judges differ over inclusion of post-Amendment appointees, adjourn hearing till Oct 13
ISLAMABAD: The Supreme Court’s eight-member Constitutional Bench (CB) on Thursday raised crucial questions about whether it had the judicial authority to order the formation of a full court, as arguments continued on challenges to the controversial 26th Constitutional Amendment—a law that redefined judicial powers, appointments, and tenure.
Senior lawyer Munir A. Malik argued that the CB could indeed issue such an order using its “judicial powers,” while Justices Aminuddin Khan and Jamal Khan Mandokhail questioned whether judges appointed after the 26th Amendment should be excluded if a full court were formed.
The eight-judge CB—headed by Justice Aminuddin Khan and comprising Justices Jamal Mandokhail, Muhammad Ali Mazhar, Ayesha Malik, Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhtar Afghan and Shahid Bilal Hassan—heard multiple petitions urging that the matter be referred to a full court.
The hearing, streamed live from 11:30am to 1pm, also saw spirited exchanges among judges over the implications of the 26th Amendment, which took effect last October. The law has faced criticism from legal circles and opposition parties for allegedly undermining judicial independence by limiting the Supreme Court’s suo motu powers, setting the Chief Justice’s tenure at three years, and creating a Special Parliamentary Committee empowered to appoint the Chief Justice from among the three most senior judges.
Judicial powers vs. constitutional structure
Advocate Munir A. Malik, representing the Balochistan High Court Bar Association (BHCBA), contended that “a full court existed before the 26th Amendment” and that the CB could use its judicial powers to order one. “Yes, absolutely—this order can be issued using judicial powers,” he said in response to Justice Mandokhail’s query.
Justice Ayesha Malik asked if any “obstacle” existed in forming a full court. Malik replied that the CB could do so regardless of whether it was a regular or constitutional bench.
However, Justice Ayesha cautioned that the petitioners were relying on the same amendment they were challenging. “This court has said numerous times before not to depend on the challenged amendment but on the original Constitution,” she remarked.
Justice Mandokhail added that under Article 191A, introduced by the amendment, the Judicial Commission of Pakistan nominates judges for constitutional benches, questioning whether the Chief Justice could still decide that a case be heard by a full court. Malik replied that any bench could issue a judicial order to that effect.
Judges debate inclusion criteria
The discussion grew more pointed when Justice Musarrat Hilali suggested that “judges appointed after the 26th Amendment should not be part of the bench.” Justice Mandokhail responded humorously, “We are from before the 26th Amendment—were the new judges brought from some other country?”
Justice Muhammad Ali Mazhar clarified that the amendment did not alter the number of judges in the apex court. Justice Hilali later clarified her remark was not made with “sinister intent.”
Justice Mandokhail emphasized that all judges are honorable, saying, “They should not be thrown under the bus.” He urged Malik to propose a practical mechanism for allowing all judges to sit on the bench while questioning whether such a bench would be led by the Chief Justice or the CB head.
Justice Khan, presiding over the CB, asked whether judges appointed after the 26th Amendment should be removed if a full court was formed, observing that the bench itself had faced public criticism.
There are currently 13 members of the CB, including Justices Hashim Khan Kakar, Salahuddin Panhwar, Shakeel Ahmad, Aamer Farooq and Ishtiaq Ibrahim, all appointed in February this year.
Justice Mandokhail told Malik that “whether willingly or not, Supreme Court judges have accepted the 26th Amendment,” suggesting that the debate now was largely procedural.
Following Malik’s arguments, former Supreme Court Bar Association (SCBA) president Abid Shahid Zuberi began his submissions, contending that a full court could be constituted with available judges and that it was “not necessary” for all 15 to sit.
When Justice Hilali asked whom the CB could order to form a full court, Zuberi said directives could be issued to the Practice and Procedure Committee, which forms benches for cases. He added that the composition should reflect judges serving before the 26th Amendment.
The bench adjourned the hearing till October 13 (Monday) when Zuberi will continue his arguments.
Background of the petitions
The 26th Amendment has been challenged by bar associations, lawyers, and political parties including the PTI, arguing that it was passed under duress, with allegations that several lawmakers were coerced into supporting it. Petitioners have sought to strike down the amendment for procedural lapses and for infringing upon the judiciary’s independence — a “salient feature” of the Constitution.
Alternative prayers seek to nullify provisions relating to performance evaluations of high court judges, the new appointment process for the CJP, and the establishment of constitutional benches, which the petitioners say alter the court’s original constitutional structure.
The Supreme Court will first decide whether a full court or the existing eight-judge CB should hear the matter before proceeding to rule on the validity of the 26th Amendment.
