An eight-judge Constitutional Bench (CB) of the Supreme Court (SC) on Monday resumed hearing a set of pleas challenging the 26th Amendment and mull on the petitioners’ request to form a full court.
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 is set to continue his arguments on the case today.
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.”
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
