- Munir A. Malik urges case be heard by all 16 judges who formed SC before amendment, citing Article 176 that defines SC as comprising chief justice and all judges
- Justice Ayesha Malik notes Article 191-A itself under challenge, Justice Hilali says judges appointed after amendment ‘cannot hear the case’
- The eight-member bench adjourns proceedings until Monday after extensive legal debate
ISLAMABAD: The Supreme Court on Thursday deliberated on the composition of the bench competent to hear petitions against the 26th Constitutional Amendment, as the petitioners’ counsel urged that the case be referred to a full court comprising all 16 judges who were part of the apex court before the amendment came into force.
An eight-member constitutional bench (CB) headed by Justice Aminud Din Khan resumed hearing of the petitions challenging the 26th Amendment, which introduced wide-ranging reforms in the judiciary, including the creation of constitutional benches in the Supreme Court and high courts.
Senior lawyer Munir A. Malik, representing the Balochistan Bar Council (BBC) and the Balochistan High Court Bar Association (BHCBA), endorsed the arguments previously advanced by Hamid Khan, adding that the matter should be heard by a full court.
“The case should be heard by the Supreme Court as it existed prior to the amendment — by all 16 judges,” he submitted.
Justice Jamal Khan Mandokhail pointed out that such a panel would not constitute a “full court” but rather a larger bench. Malik, however, insisted that under Article 176, the Supreme Court consists of the chief justice and all judges, and therefore “this case should be heard by the Supreme Court as a whole.”
Reading from Article 191-A, Malik argued that the 26th Amendment did not restrict the apex court’s authority to exercise its powers except through a constitutional bench, nor did it create a separate judicial body. “The CB is part of the Supreme Court—not a parallel institution,” he said.
When asked by Justice Mandokhail if such a panel would still be termed a bench, Malik replied that it would be referred to as the Supreme Court in banc, a universally recognized judicial practice.
Justice Ayesha Malik observed that no judicial order barred the formation of a full court, while Justice Muhammad Ali Mazhar inquired to whom a CB’s order would apply. Malik responded that such an order would bind all constitutional authorities.
He further submitted that the Supreme Court’s powers could only be removed by abolishing the court itself, since Article 176 remained unchanged. “A full court should be referred to as the Supreme Court; the term ‘bench’ is alien to the Constitution,” he remarked.
Justice Mandokhail observed that the 26th Amendment did not curtail the court’s jurisdiction, noting that the Judicial Commission of Pakistan (JCP) could form a CB comprising all judges. Justice Aminud Din Khan, however, questioned whether the current bench should ignore Article 191-A altogether.
Justice Ayesha Malik stated that Article 191-A itself was under challenge, adding, “Why should we proceed by first endorsing it?” Justice Mazhar asked what would justify the current bench’s formation if that article was disregarded, to which Justice Aminud Din Khan noted that the existing bench was constituted through the committee created under the amendment. Malik maintained that the bench retained authority to issue judicial orders despite this.
During the hearing, a brief exchange of remarks took place among the judges. Justice Musarrat Hilali observed that the court must revisit “point zero” to determine whether the subsequent amendments infringed on fundamental rights, adding, “Judges appointed after the 26th Amendment cannot hear this case.”
Justice Mandokhail disagreed, asking, “Were the judges appointed after the amendment imported from another country?” Justice Mazhar clarified that the increase in the number of Supreme Court judges was done through law, not via the amendment itself. Justice Ayesha Malik, however, noted that their appointments followed the procedure introduced under the 26th Amendment.
In response to Malik’s contention that only pre-amendment judges should hear the case, Justice Mandokhail questioned how the CB could exclude its “brother judges.” Justice Hilali remarked that the fate of judges appointed after the 26th Amendment depended on the case’s outcome, saying, “Whether they remain SC judges or not will be known once the verdict is announced.”
When Justice Mandokhail asked where those judges would go if the amendment was struck down, Malik replied that they would return to their respective high courts.
The hearing was adjourned until Monday.
