Justice Muhammad Ali Mazhar on Tuesday remarked that the Supreme Court’s regular and constitutional benches (CBs) were “branches of one tree” as an eight-member CB heard arguments on petitions challenging the 26th Amendment.
The Amendment was passed by Parliament during an overnight session in October last year, with the PTI claiming seven of its lawmakers were abducted to gain their favour as the party opposed the legislation. The Balochistan National Party-Mengal (BNP-M) also alleged its two senators were being pressured, with both later defying party line to vote in the tweaks’ favour.
The legislation, which altered judicial authority and tenure, has been a lightning rod for debate, with both opposition parties and legal experts questioning its impact on the judiciary’s independence. The tweaks took away the SC’s suo motu powers, set the chief justice of Pakistan’s (CJP) term at three years and empowered a Special Parliamentary Committee for the appointment of the CJP from among the three most senior SC judges. It also paved the way for the formation of the CB, which is now hearing petitions against the very legislation that enabled its establishment.
The hearing
The bench hearing the pleas is headed by Justice Aminuddin Khan and also includes Justices Mazhar, Jamal Khan Mandokhail, Ayesha Malik, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhtar Afghan and Shahid Bilal Hassan.
Retired Justice Syed Shabbar Raza Rizvi, a former Lahore High Court judge, concluded his arguments today. Dr Adnan Khan, counsel for Anas Ahmed, also presented his contentions. The hearing was adjourned till 11:30am tomorrow.
As Rizvi continued his arguments, Justice Mandokhail said, “Even if we accept your stance that the Supreme Court and the bench are separate, then this shows that the bench’s suo motu power is maintained but has been taken away from the Supreme Court.”
However, Rizvi replied that while the CB had been given some powers under the 26th Amendment, none were taken away from the apex court.
Referring to the provision that was introduced through the 26th Amendment, Justice Hilali observed, “The amendment has been made in the Constitution. Article 191A has come into existence and constitutional benches have been made under it.
“Now you are saying there should be a full bench. So will we need to go into the pre-Amendment era […] and suspend the 26th Amendment for it?” she asked, adding that how Article 191A can be “bypassed”.
Rizvi responded that Article 191A should be read in conjunction with other provisions, not on its own. He argued that Article 191A had not “ended the Supreme Court’s jurisdiction under Article 184(3)” (original jurisdiction).
At this, Justice Mazhar observed that the powers under Article 184(3) had been transferred to the CB under Article 191A, adding that the latter provision “clearly mentioned” the same.
Rizvi then proceeded to cite several past judgments to support his arguments, adding that Article 191A should be read with Article 176, which provides the constitution of the SC.
The retired judge noted that despite having special powers, the Federal Shariat Court (FSC) was a part of SC and could also use powers vested in the apex court under Article 187 (issue and execution of SC processes) of the Constitution.
He termed Article 187 a “helpful provision to enact complete justice”.
“The Constitutional Bench can also use powers provided under Article 187. The Constitutional Bench was also made within the Supreme Court, right?” Justice Mazhar said.
Justice Aminuddin remarked that the question at hand was not about the CB’s powers, but rather how to “make judges of non-constitutional benches” part of the CB.
Rizvi, echoing Sheikh’s arguments from yesterday, contended that the CB judges had two roles: “You are the Supreme Court and the Constitutional Bench as well.”
At this, Justice Mazhar remarked, “Regular bench and Constitutional Bench, both are two branches of one tree. […] Nobody is saying it (CB) is not the Supreme Court, or above or below it.”
Justice Mandokhail wondered whether Rizvi meant that benches could not hear the case, but a full court had the powers to do so. Justice Mazhar pointed out that even in India, whose example Rizvi cited, cases before constitutional benches were not referred to regular ones.
He further noted that while the neighbouring country still had the concept of the chief justice being the “Master of the Roster”, Pakistan no longer had the same as committees had been formed to fix cases for hearing.
At one point, Rizvi suggested that the CB be considered a constitutional court. “This was being established as a constitutional court, but it became a constitutional bench,” he said, referring to the proposals mulled as part of the 26th Amendment last year.
“The advice you are giving is good,” Justice Mandokhail remarked.
“The confusion is that instead of ‘court’, the term ‘bench’ was used,” Rizvi said.
Recalling Rizvi’s and Sheikh’s requests for a full court comprising all 24 judges, Justice Mazhar observed, “Now we have to decide whether this Constitutional Bench has the power to form a full court of 24 judges or not.”
In response, the retired judge suggested that the CB was, after all, a bench of the apex court and could refer the matter to the CJP just as any regular bench could.
Here, Justice Aminuddin remarked, “Are you saying that we should give power to those judges who do not have it under the law?”
Addressing Rizvi, Justice Mazhar said, “Tell us a way to circumvent Article 191A.”
Rizvi then suggested that the CB could refer the matter ahead, at which Justice Mazhar asked to whom. The petitioner replied that the CB would know this better, but the judge pointed out that the issue with forwarding the matter to the CJP was that he was not a part of the CB.
At one point, Justice Hilali corrected Rizvi, clarifying that “no one said we cannot do anything” about the 26th Amendment.
Upon Justice Mandokhail urging Rizvi to conclude his arguments soon, the latter said, “The Amendment that is in place does not have the sanctity [it should].”
After the retired judge completed his arguments, Adnan came to the rostrum and highlighted previous contentions about a bench and a full court being separate entities.
“A bench is constituted, whereas the full court is not. A bench is a part of the full court, while the full court is a permanent body,” the lawyer said.
The hearing witnessed some back and forth when Adnan contended that before the 2023 Practice and Procedure Act, the CJP could constitute benches, but there was no specific provision for forming full courts; rather, it was a convention.
Justice Mandokhail asked whether Adnan meant that a full court already existed and matters were to be simply referred there, whereas in the case of benches, benches were first constituted and then cases were fixed. The lawyer replied in the affirmative.
Justice Hilali wondered how the CB could “bypass” Article 191A to include all judges. Adnan replied that Article 191A only barred other benches from hearing constitutional cases but not the full court.
Justice Aminuddin observed that the bench had “absolutely no objection or reservation if the full court has the jurisdiction” to hear the case.
Adnan contended that both the CB and a full court could hear the 26th Amendment case, but precedence and the concept of “collective wisdom” favoured that the full court hear the case.
“Has this Amendment not blocked the path of convention?” Justice Hilali wondered. She asked the lawyer if he could suggest a “safe path through which the Constitutional Amendment could be bypassed and it would not be illegal either”.
At one point, Justice Aminuddin remarked, “Let’s also talk about this today. This matter is raised again and again. Tell us how many members there are in the Judicial Commission of Pakistan (JCP) and who they are.”
Adnan responded that the law minister was among the “many” members of the JCP, adding that the topic pertained to the arguments of the main case, and so it was inappropriate to discuss at this point.
“Look at our patience; we are continuously hearing lies while sitting here. Tell us what their dominant role is in the constitution of benches,” Justice Aminuddin quipped.
The counsel stated that he had no objection to any of the judges in the current CB, adding that “we have no role in the formation of constitutional benches”.
“Let the collective wisdom of the Supreme Court prevail over the collective wisdom of the parliament,” Adnan said, concluding his arguments.
The petitions
Thus far, Lahore High Court Bar Association (LHCBA) lawyer Hamid Khan, Balochistan High Court Bar Association’s counsel Munir A. Malik, and petitioners Barrister Salahuddin Ahmed and senior lawyer Abid Shahid Zuberi have sought the formation of a 16-member full court as per the number of judges present in the SC in Oct 2024, when the Amendment was passed.
Judges have questioned whether the CB has the power to issue orders for the constitution of a full court, as requested by petitioners.
The case proceedings are being live-streamed on the SC’s YouTube channel since October 8, upon the petitioners’ request. The bench will first determine whether the challenges should be heard by a full court comprising all available SC judges or by the same eight-judge CB, before deciding on the 26th Amendment itself.
The 26th Amendment had been challenged by various bar associations, bar councils, lawyers, the PTI, and some politicians. The SC is also seized with separate petitions seeking the formation of a full court to hear the matter, rather than the CB.
The petitioners have requested the apex court to strike down the entire 26th Amendment on grounds of procedural impropriety if determined that the requisite two-thirds of the lawfully elected membership of each House did not freely exercise their right to vote in favour of the same as required under Article 239, which elaborates on bills and their passage to amend the Constitution.
In the alternative, the petitioners pleaded, the court should strike down certain provisions of the 26th Amendment since they substantively undermine the independence of the judiciary, which is a salient feature of the Constitution.
These included the provisions for annual performance evaluations of high court judges by the JCP being inserted in Article 175A(1) and Articles 175A(18) to (20); the provisions relating to the appointment of the CJP being the substitution to Article 175A(3), and the provisions for constitutional benches in the SC and high courts.
The petitioners also challenged the constitutionality of the constitutional benches, arguing that the SC should declare invalid all amendments for which votes of such members whose election disputes were pending were necessary to achieve the prescribed numerical threshold in Article 239.
They also called for the Practice and Procedure Act 2024 and the Supreme Court (Number of Judges) Act 2024 to be declared unconstitutional, void ab initio and of no legal effect, since they stem from an “unconstitutional” amendment and represent an attempt to achieve unconstitutional designs.
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