Justice Jamal Khan Mandokhail on Monday wondered whether judges comprising the Supreme Court’s (SC) Constitutional Bench (CB) hearing petitions against the 26th Amendment could do so if they were its “beneficiaries”.
The Amendment was passed by the 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.
Former Supreme Court Bar Association (SCBA) president Abid Shahid Zuberi continued his arguments on the case today. The hearing has been adjourned till 11:30am tomorrow (Tuesday).
The CB hearing the pleas is headed by Justice Aminuddin Khan and also includes Justices Mandokhail, Muhammad Ali Mazhar, Ayesha Malik, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhtar Afghan and Shahid Bilal Hassan.
During recent hearings, judges have questioned whether the CB has the power to issue orders for the constitution of a full court, as requested by petitioners.
So far, Lahore High Court Bar Association (LHCBA) lawyer Hamid Khan, Balochistan High Court Bar Association (BHCBA)’s counsel Munir A. Malik and petitioner Barrister Salahuddin Ahmed have presented their arguments. Hamid sought the formation of a 16-member bench as per the number of judges present in the SC in Oct 2024. Malik contended that the CB had the power to issue a judicial order for the formation of a “full court”.
On Saturday, a convention jointly hosted by the LHCBA and the Lahore Bar Association resolved to continue its struggle against the 26th constitutional Amendment, declaring that the legal fraternity would not accept any judicial verdict that undermines the judiciary’s independence.
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 legality of the 26th Amendment.
The case was initially taken up in January, and after the CB’s approval of petitioners’ request for it, the proceedings are being live-streamed on the SC’s YouTube channel since October 8.
The hearing
At the outset of the hearing, Justice Mandokhail questioned whether it was the right of any party to request a bench of its choice, to which Zuberi replied, “I do not think that any party has the right to select a bench of their choice. But here the case is that we are requesting a full court on some constitutional legal issues.”
The ex-SCBA president added that he had “always insisted that there should be a full bench”.
Justice Mandokhail then asked why Zuberi wanted a full court, to which the latter said he would cite past judgements by the judges on the bench that rule for the formation of a full court.
Upon the judge asking how many judges were appointed in the apex court currently and what a full court would look like, Zuberi said there were a total of 24 judges. “I am not declaring any judge wrong. All judges are honourable.”
Justice Ayesha then enquired of the petitioner what his request was, to which Zuberi said that judges who were present before the 26th Amendment should hear the case. LHCBA’s counsel Hamid and BHCBA’s lawyer Malik had also sought the same.
Responding to a question by Justice Mandokhail on the reasoning behind his request, Zuberi argued that the 26th Amendment, under which the CB was formed, “itself had been challenged”.
Justice Mandokhail then wondered whether the CJP, who was elevated to his role after the passage of the contested amendment, would be part of the bench or not, at which Zuberi said that the chief justice himself should decide that.
Justice Mandokhail noted: “The chief justice was appointed under the 26th Amendment. If the constitutional amendment had not been present, then Yahya Afridi would not have become the chief justice, as the timing was specified.
“May Allah grant long life to the chief justice, the senior puisne judge (Justice Mansoor Ali Shah) was set to become the chief justice, but he could not.”
The 26th Amendment had discarded the seniority principle for the CJP’s appointment and set the selection criteria for the role from the top 3 senior SC judges.
Justice Mandokhail then wondered, “If we are the beneficiary [of the Amendment], then can we not be on the bench?” Justice Mazhar asked who would hear the case then.
Zuberi clarified that he had not termed them as “beneficiaries” of the legislation. Justice Mandokhail then remarked, “So you are saying that eight judges deciding the case would be wrong. It will be the same thing whether we eight sit or a full court sits,” the judge added.
“Do you think that the eight judges will become biased after sitting in the constitutional bench right now?” he asked, adding that who would decide the case if the amendment under which the CB was formed was challenged.
Zuberi highlighted that a full court meant the “collective minds of everyone”. Justice Aminuddin remarked that the judges were to act as per the Constitution.
At this point, Justice Ayesha observed that Article 191A of the Constitution, under which the constitutional benches were formed in the SC, “does not address the matter of a full court, but benches”.
Justice Mandokhail remarked that a full court could also be termed a bench, but Justice Ayesha noted otherwise.
Questioning the CB’s powers to form a full court, Justice Mazhar noted that the CB was nominated by the Judicial Commission of Pakistan (JCP) and asked whether the bench could include judges in it who were not a part of it.
Zuberi, echoing the arguments presented by LHCBA counsel Malik, replied, “The constitutional bench can issue a judicial order. […] Full court is not a bench.”
Justice Mandokhail said, “How can we pass a judicial order [for full court] if it is not our jurisdiction? We will say it clearly that we do not have the jurisdiction.”
However, Justice Ayesha asked, “Is there a restriction on passing a judicial order?”
The petitions
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
