• Justice Mandokhail’s observation that both amendment and SC Rules are silent on ‘full court’ stirs hornets’ nest
• Justice Hilali, attorney general advise bench not to debate internal matters in open court
ISLAMABAD: Divergent positions during the hearing of challenges to the 26th Amendment before the eight-judge constitutional bench on Tuesday stripped away the usual veneer of collegiality among judges, exposing simmering tensions within the Supreme Court.
At the heart of the disagreement were discussions surrounding the adoption of the Supreme Court Rules, 2025, and the formation of a full court to hear the constitutional challenges.
Senior counsel Abid Shahid Zuberi, representing former presidents of the Supreme Court Bar Association (SCBA), argued that the full court should comprise all 16 judges who were part of the apex court when the 26th Amendment was passed by parliament.
However, members of the eight-judge bench, headed by Justice Aminuddin Khan, repeatedly questioned how they could order the formation of a full court, when neither the constitutional amendment nor the newly adopted court rules provided guidance on such a matter.
The proceedings grew heated, prompting Attorney General for Pakistan (AGP) Mansoor Usman Awan to intervene, urging the court not to air its internal judicial matters in open court.
Debate over composition
Tensions first surfaced when Justice Jamal Khan Mandokhail, addressing the counsel, asked him to clarify his position, since he was advocating for a full court while also insisting that it should comprise only 16 judges, even though the present strength of the Supreme Court stands at 24 judges.
“The counsel should propose a way forward — how can this bench order the constitution of a full court?” Justice Mandokhail remarked.
When Justice Ayesha A. Malik interjected and recalled previous judgements, which held that when a particular constitutional provision was under challenge, it could be disregarded until its legality was determined, Justice Mandokhail retorted, “Let the counsel respond to the query.”
Citing the Practice and Procedure judgment, Mr Zuberi explained that the current constitutional bench comprised eight judges, while its total sanctioned strength was 15. Consequently, the right of intra-court appeal against a decision of the current bench might not be available, since at least nine different judges would be required to hear such an appeal.
Justice Malik observed that the Practice and Procedure ruling had provided a mechanism — empowering the Judicial Commission of Pakistan (JCP) to decide whether to grant or deny the right of appeal. “If the Commission wishes to allow it, it can nominate additional judges to enhance the bench’s strength. And if it does not agree, the right can be withheld,” she explained.
Justice Mandokhail, however, disagreed, asserting that even if a full court of 16 judges were constituted, the right of appeal would still not apply to its decisions.
Mr Zuberi said that it had been held in the Practice and Procedure case that when the entire court sits en banc, no appeal was necessary as the collective wisdom of all judges was already represented.
Adoption of SC rules
Justice Mandokhail said both Article 191A of the Constitution and the Supreme Court Rules 2025 were silent on the precise composition of a full court. He noted that when the full court, on the administrative side, approved the new rules, the requirement of collective decision-making had already been fulfilled.
The observation, however, stirred controversy.
Justice Malik said no discussion had taken place when the rules were approved, rather they were adopted through circulation, and her dissenting note was on the record. She suggested that the minutes of the process be called to verify how the rules had been passed.
However, Justice Mandokhail insisted that bench formation would proceed strictly in accordance with the new rules.
Mr Zuberi referred to Order 11 of the SC Rules, arguing that the three-judge committee under the Practice and Procedure Act was responsible for constituting benches. Justice Mandokhail, however, pointed out that nowhere in the rules was it stated that benches would be formed by the Chief Justice of Pakistan (CJP), adding that the rules were finalised in the presence of all 24 judges.
Justice Muhammad Ali Mazhar agreed with Justice Malik’s observation that the rules had been approved through circulation. Justice Mandokhail maintained that all judges had been asked to give their input. “Are you calling for the records or not?” Justice Malik asked, turning towards the head of the bench.
Sensing the growing tension, Justice Mussarat Hilali advised her colleagues to lower their voices and move forward calmly.
“This case will not proceed further until it becomes clear how the rules were adopted,” Justice Mandokhail remarked sharply. “If I am being contradicted, I will place everything before the entire nation.”
Justice Hilali replied humorously that the “entire nation” was not watching since the live-streaming of the hearing was unavailable. Justice Mazhar then instructed court staff to fix the technical fault immediately.
The tense exchanges prompted the attorney general to return to the rostrum, urging the judges to refrain from debating internal court matters in open proceedings. Later, the court staff informed the bench that live-streaming had been restored.
Published in Dawn, October 15th, 2025
