An eight-judge Constitutional Bench of the Supreme Court has resumed hearing arguments on the appropriate bench that could hear over three dozen petitions against 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.
Advocate Khwaja Ahmad Hosain, counsel for veteran politician Afrasiab Khattak, began his arguments today.
The live stream of the hearing initially faced technical issues, with the audio being cut off. However, the issues were later resolved with proceedings being streamed as per usual.
The bench hearing the pleas is headed by Justice Aminuddin Khan and also includes Justices Mohammad Ali Mazhar, Jamal Khan Mandokhail, Ayesha Malik, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhtar Afghan and Shahid Bilal Hassan.
During yesterday’s proceedings, Justice Mazhar termed regular and constitutional benches “branches of one tree”. He also observed that the authority to do “complete justice” under Article 187 of the Constitution was still available and vested in the CB.
This power was never given up, and can still be exercised by the CB if it feels the need to invoke this provision to do complete justice, emphasised Justice Mazhar.
The doctrine of “complete justice” is the same principle invoked by a pre-amendment SC bench that allocated reserved seats to the PTI, but the verdict was later overturned by the CB.
According to the cause list, the CB has taken up 37 petitions pertaining to the 26th Amendment, including those filed by the PTI, the Sunni Ittehad Council, the Jamaat-i-Islami, and multiple bar associations.
The hearing
At the outset of the hearing, Hosain emphasised that the judiciary’s reputation “does not depend on the 26th Constitutional Amendment”.
“This case should be heard by a different independent bench,” he asserted.
Justice Mandokhail then asked, “Do you not trust this bench?”, at which the lawyer said that a decision on Article 191A — through which the CB in the apex court was introduced — should be taken by the “original full court”.
Here, Justice Rizvi noted that Hosain’s petition did mention the term “original full court”. The counsel clarified that he did not say “this bench is not independent”.
Justice Mandokhail remarked, “You yourself said that the case should be kept before another independent bench. Will we judges be included in that ‘independent bench’?”
Justice Aminuddin also wondered whether CJP Yahya Afridi would be a part of that “independent bench”, to which Hosain replied that he “absolutely would be”.
Here, Justice Mandokhail questioned Hosain that the current CB “could not hear this case, how could it issue any order”.
The lawyer replied, “Why is the court seeking a path to issue an order? So far, the Centre has not raised any objection to a full court or [the CB] issuing any order.
Justice Aminuddin responded that each lawyer had their own stance, and that the bench was raising questions after considering the Constitution. “Some lawyers are even saying to keep aside the Amendment,” Justice Mandokhail observed.
At one point, Justice Mazhar noted, “If 26 judges are included, then it will become a regular bench.” Hosain also agreed that it would not be a constitutional bench.
Justice Mandokhail recalled Dr Adnan Khan’s arguments from yesterday, in which he contended that the SC and the CB were separate entities. The judge then directed the lawyer to detail since when the concept of benches existed.
At Justice Mazhar mentioning some lawyers’ arguments that other SC judges can also be included in the current bench, Hosain asserted that the CB was also a bench of the apex court.
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, 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.
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.
More to follow
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