ISLAMABAD: The Supreme Court of Pakistan on Wednesday continued deliberations on over thirty petitions challenging the 26th Constitutional Amendment, as members of the Constitutional Bench discussed whether the court’s authority to hear such cases could be restricted.
Justice Jamal Khan Mandokhail emphasized that neither the Supreme Court nor the high courts could be prevented from hearing cases, even if their jurisdiction is limited by an amendment. “If an amendment strips the entire Supreme Court of its powers, then who will hear the case? The same court, right?” he stated.
The eight-member Constitutional Bench, led by Justice Amin-Ud-Din Khan, includes Justices Ayesha A Malik, Mohammad Ali Mazhar, Syed Hassan Azhar Rizvi, Musarrat Hilali, Naeem Akhtar Afghan, Shahid Bilal Hassan, and Justice Mandokhail himself.
The case centers on the contentious 26th Amendment, enacted during an overnight parliamentary session last October. The legislation, which amended judicial powers and tenure, eliminated the Supreme Court’s suo motu jurisdiction, set a three-year term for the Chief Justice of Pakistan, and established a Special Parliamentary Committee to select the chief justice from the three most senior judges. It also formalized the formation of Constitutional Benches in the Supreme Court and high courts.
Lawyers’ Arguments
During Wednesday’s proceedings, Khawaja Ahmed, representing former Chief Justice Jawwad S Khawaja, argued that the 26th Amendment did not prohibit the formation of a full court. He maintained that the Supreme Court still retains the authority to hear constitutional challenges, even if its jurisdiction is restricted by legislation.
Justice Mazhar observed that a decision would be issued if the petitioner could demonstrate that the amendment violated the core principles of the Constitution. “None of us has denied that we will hear the merits of the 26th Amendment,” he stated.
Khawaja Ahmed further contended that the proper procedure was not followed for passing the amendment, asserting that even with limited powers, “the Supreme Court remains in its constitutional position.” When asked about issuing directives for forming a full court, he replied, “Do not underestimate your authority; you can issue judicial orders that will be binding.”
After completing his arguments, the court adjourned the hearing until Thursday, when Shahid Jamil, representing Mustafa Nawaz Khokhar, is scheduled to present his case.
Full Court Inquiry
Justice Ayesha Malik, addressing lawyer Khawaja Ahmad Hosain, pointed out that the 26th Amendment does not prohibit a full Supreme Court from hearing cases before the Constitutional Bench under Article 191A. She clarified that this article is procedural and does not restrict the court’s jurisdiction.
Justice Malik explained that while Article 191A limits which benches can exercise certain jurisdictions, it does not bar the court as an institution from doing so. “For some reason, we interpret this as an ouster,” she remarked. “It simply states that no other bench will do it, not that the Supreme Court itself is prevented.”
Advocate Hosain, representing veteran politician Afrasiab Khattak, argued that the judiciary’s credibility “does not depend on the 26th Constitutional Amendment” and called for the case to be heard by an independent, full court. Justice Mandokhail questioned whether the lawyer distrusted the current bench. “You say the case should be before another independent full court. Will we be part of that?” he inquired.
Hosain clarified that he did not doubt the independence of the current bench, only that the original full court should decide on the validity of the amendment. Justice Rizvi observed that Hosain’s petition referred to an “original full court,” and Justice Mazhar added that if the court included all 26 judges, “it would be a regular bench, not a constitutional one.”
Petitioners and Proceedings
The petitions, filed by Pakistan Tehreek-e-Insaf (PTI), Jamaat-e-Islami, Sunni Ittehad Council, bar associations, and several former presidents of the Supreme Court Bar Association, challenge both the procedural and substantive aspects of the amendment. They allege that Parliament failed to adhere to Article 239’s two-thirds voting requirement and that votes were influenced by coercion, including claims that seven PTI lawmakers were abducted during the session.
The petitioners are seeking to have the entire 26th Amendment or its key provisions struck down, arguing it undermines judicial independence. They specifically oppose new clauses in Article 175A, which introduce annual performance reviews for high court judges and alter the appointment process of the Chief Justice.
They have also petitioned to declare the Practice and Procedure Act 2024 and the Supreme Court (Number of Judges) Act 2024 unconstitutional, asserting both stem from an “unlawful” amendment.
The ongoing hearings, streamed live on the Supreme Court’s YouTube channel since October 8, are focused on whether the petitions should be examined by a full court comprising all judges or by the current eight-member Constitutional Bench before addressing the merits of the 26th Amendment.
