Justice Shahid Bilal Hassan on Thursday remarked that ignoring Article 191A through which the Supreme Court’s Constitutional Bench (CB) was formed under the 26th Amendment would amount to granting the petitioners “final relief”.
Justice Hassan’s observation came as an eight-member CB heard over three dozen petitions against the 26th Constitutional Amendment, which was passed by Parliament during an overnight session in October last year.
The PTI claimed 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
Advocate Uzair Bhandari, counsel for the Sunni Ittehad Council (SIC), began his arguments today. The hearing was adjourned till November 10, with Justice Aminuddin Khan saying that a later date would be fixed for the hearing if the bench was not available that day.
Justice Aminuddin is heading the bench hearing the case. It also includes Justices Jamal Khan Mandokhail, Mohammad Ali Mazhar, Ayesha Malik, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhter Afghan and Hassan.
At the outset of the hearing, retired Justice Shahid Jamil Khan, a former judge of the Lahore High Court who resigned four years before his superannuation, came to the rostrum.
Justice Mandokhail asked Jamil whether he had a separate petition against the 26th Amendment, to which the latter replied that his client has requested for the “implementation of the Practice and Procedure Committee’s decision”.
The former judge informed the court that he had a visit abroad scheduled for November 2, with Justice Aminuddin telling him that the CB will listen to his arguments towards the end of the proceedings.
Justice Mandokhail remarked, “You may present your arguments after returning […] We will also be fresh.”
Subsequently, Advocate Bhandari came to the rostrum and said he will present his arguments on the “current value” of the 26th Amendment.
However, Justice Mandokhail directed him to inform the court which bench could hear the case before presenting his main arguments.
Bhandari noted the bench’s “concern” that Article 191A, through which the CB was introduced in the apex court, was in place. “The bench considers that Article 191A bars it from referring the matter to a full court.”
Here, Justice Hassan told the SIC lawyer to detail what constitutes a full court. Justice Mandokhail quipped that the CB wanted to know whether a full court would be “formed on wishes or as per the law”.
Bhandari responded that it will be according to the law. He added that “full courts are never formed; they always exist”, echoing the stances taken by lawyers Munir A. Malik and Dr Adnan Khan.
Upon Justice Mandokhail asking Bhandari whether a full court was a “precedent” and had not been defined in the Constitution, the counsel contended that a full court’s definition was stated in Article 176 (constitution of SC).
Noting that the question now was who would form the full court, Bhandari argued that the current CB could issue orders for it, which would be “binding on all persons”.
Justice Mazhar then again raised a question mulled repeatedly in recent hearings: “How can Article 191A, due to which this bench was constituted, be ignored?”
Bhandari replied, “Even when the authority is taken away from one court, it still has the authority to send [the case] to the competent court.”
Justice Mazhar reiterated that the foundations of the CB were provided under Article 191A, adding that the lawyer was arguing to “ignore” that provision.
Justice Hassan also remarked, “You are making us ignore Article 191A, but also want this bench to pass an order.”
At this, Bhandari stressed, “I have not requested to suspend the 26th Constitutional Amendment in my petition. If the Amendment is suspended, then you all would not be even able to hear any case.”
Justice Mazhar once again observed that he and other judges were part of the current CB under Article 191A, asking rhetorically how the provision could be disregarded.
Addressing Bhandari, Justice Hassan noted, “If Article 191A is ignored, then that would amount to granting you final relief.”
The SIC council contended that the court had to decide “whether Article 191A is valid or not”.
Justice Mazhar responded that the provision — introduced under the same Amendment that is under challenge — is “valid, which is why it is a part of the Constitution”.
Justice Afghan then observed, “The question is what forum can declare Article 191A right or wrong.”
Bhandari answered the judge, saying that the SC had the jurisdiction to hear the case. “This would amount to suspending the 26th Amendment,” Justice Aminuddin remarked.
Bhandari said he would first “remove the obstacle of Article 191A in front of him”. “Only the lordships in the bench are consistently raising this question. The ladyships have not asked any question,” he said.
“The ladies have understood the matter,” Justice Hilali quipped. Justice Mandokhail added, “The women judges are sharper than me.”
At this point, Justice Ayesha observed that Article 191A was not taking away someone else’s powers, but was vesting them in the SC.
“No jurisdiction has been taken away anywhere,” she asserted.
Bhandari then recalled that once a former United States judge was asked why a full court hears all cases, to which the judge responded that the jurisdiction lay with the US top court, not with the benches.
Justice Mandokhail then remarked, “The Supreme Court has given the powers to the benches.” In response, the lawyer contended that every judge belonged to the SC and had “judicial powers”.
The hearing was then adjourned till November 10, with Bhandari set to continue his arguments.
Commenting on the proceedings, Barrister Asad Rahim Khan pointed out on X that Article 191A “says not a word” on a full court.
“And even if it did, the entire point of this case is to determine whether the amendment, which includes [Article] 191A, was legal and constitutional.
“Why already presume its permanency — that it must remain unquestioned?” he asked.
“By that logic, the SC should never have convened a full court to hear challenges to the 18th, 19th, 21st Amendments either. Art. 175(3) had been amended by the 21st to exclude the SC altogether. But it did anyway, because the core issue — their validity — remained unresolved.”
Requests for full court
Thus far, Lahore High Court Bar Association (LHCBA) lawyer Hamid Khan, Balochistan High Court Bar Association’s (BHCBA) counsel Munir A. Malik, Afrasiab Khattak’s counsel Khwaja Ahmed Hosain, and petitioners Barrister Salahuddin Ahmed and 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.
Other lawyers have also presented arguments for a 24-member full court based on judges present in the SC currently, including six who were appointed after the Amendment.
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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