SC deliberates formation of full court amid 26th Constitutional Amendment challenge

As the Supreme Court began live-streaming proceedings on petitions challenging the 26th Constitutional Amendment, the Constitutional Bench (CB) heard arguments on a plea seeking the formation of a “full court” — a move seen as crucial for collective judicial deliberation on a case concerning the court’s own structure.

The petitioners’ counsel argued that Article 191A places the appointment of judges and the formation of benches within the Supreme Court’s internal domain. However, for the first time in Pakistan’s history, the amendment — passed in October 2024 — introduced a mechanism that transfers this authority away from the judiciary.

The counsel further contended that the petitions should be heard by the “same 16-member bench” that was in place when the amendment was passed, saying this would ensure continuity and constitutional legitimacy.

Hamid Khan, counsel for the Lahore High Court Bar Association, recalled that 17 judges were serving in the Supreme Court at the time the legislation was passed, including then–CJP Qazi Faez Isa, who has since retired.

He argued that the present petitions should therefore be heard by a "16-judge full court", comprising those who were part of the apex court in October last year. Khan added that all eight judges currently serving on the Constitutional Bench were among those judges.

The bench, however, pressed the counsel to cite the specific law mandating the reconstitution of the earlier bench. “Point us to the provision that allows us to constitute a full court bench,” one judge remarked, as the court sought clarity on the statutory basis for the request.

During the exchange, Justice Muhammad Ali Mazhar asked, “Tell us from the text of the Constitution, how can we order a full court? Can we issue this order using Article 187?” To this, Hamid Khan responded, “Yes, absolutely, the court can exercise its powers under Article 187.”

Justice Jamal Khan Mandokhail then remarked, “Suppose we accept your point and consider all Supreme Court judges as a constitutional bench — would you be satisfied?” Khan replied, “The concept of a constitutional bench was introduced by the 26th Amendment.”

Justice Mandokhail interjected, “It was not introduced by us — it was given by Parliament, so don’t blame us.” When Khan urged the bench to “forget about Article 191A for a moment,” Justice Mazhar retorted, “If we forget it, then the constitutional bench ceases to exist — then why are we even sitting here?”

At this point, Justice Aminuddin Khan observed, “If we forget this, then the Supreme Court itself would cease to exist today,” while Justice Mandokhail added, “If the existence of this constitutional bench ends, then how can we issue any orders?”

The petitioners’ counsel further argued that all previous “cases involving significant constitutional questions” had been heard by full court benches, citing precedents dating back to 1955, and maintained that the present petitions — which question the judiciary’s independence and structural integrity — merit the same approach.

During the hearing, Justice Ayesha Malik questioned the petitioner’s stance, asking, “Where is the bar in the 26th Constitutional Amendment that prevents the constitution of a full court?” The query was directed at Hamid Khan as he continued to press for the inclusion of all judges in hearing the case.

According to the Supreme Court’s website, there are currently 24 judges in the apex court, including Chief Justice Yahya Afridi, following the appointment of six new judges in February this year.

The hearing was adjourned until tomorrow (Wednesday) at 11:30 am.

SC commences proceedings on 26th Amendment petitions

The Supreme Court on Tuesday allowed live streaming of the proceedings on petitions challenging the 26th Constitutional Amendment, marking a major step toward transparency in a case that has triggered one of the most consequential constitutional debates in recent years.

An eight-member Constitutional Bench (CB) led by Justice Amin-ud-Din Khan granted the petitioners’ request. The bench’s unanimous decision was welcomed by lawyers and civil society, who called it a vital move to ensure "public access" to judicial proceedings involving issues of fundamental importance.

Advocate Abdul Moiz Jaferii noted that live streaming in such cases had been recognised by the apex court as a public obligation. “It opens the doors of justice to everyone with an internet connection and allows access to the process of judicial decision-making. It should be the norm in every superior court,” he said.

The latest hearing began with the bench taking up a cluster of petitions against the 26th Amendment—legislation that restructured judicial powers, altered tenure norms, and sparked deep concern over the independence of the judiciary. The court indicated it would first address pleas seeking the formation of a full court before moving to procedural requests such as live streaming.

Tehreek-i-Tahaffuz Ayeen-i-Pakistan Chairperson Mustafa Nawaz Khokhar, represented by Advocate Shahid Jameel, pressed for the constitution of a full court, noting that “objections were raised on our petition regarding the formation of a full court.” Following deliberations, the bench ordered the petition to be formally registered.

Khawaja Ahmad Hosain, counsel for former Chief Justice Jawad S Khawaja, requested that the proceedings be broadcast live, arguing that “the entire nation wants to see what is happening.” He also supported live streaming of the full court plea, stressing that the matter’s constitutional gravity demanded complete transparency.

Barrister Salahuddin argued that “every citizen should have access to information of public importance,” adding that the 26th Amendment was passed “in the dead of night” without public debate. The Khyber-Pakhtunkhwa government’s representative said his side had “no personal objection to any judge on the bench.”

After hearing arguments, the court ruled in favour of live streaming the proceedings and adjourned the case until today.

Read: SC to live stream hearings challenging 26th Constitutional Amendment

However, legal experts caution that the petitioners’ real challenge will be to persuade the CB to order the constitution of a full court to hear the matter, as several lawyers argue that a bench formed under the contested amendment cannot impartially decide its own validity.

Former senator Mustafa Nawaz Khokhar has already filed a petition seeking implementation of the Supreme Court (Practice and Procedure) Act Committee’s majority decision, which directed that petitions against the amendment be heard by a full court. The committee’s 2-1 majority ruling—issued on October 31, 2024—had ordered the SC Registrar to list the case for November 4, but it was never scheduled. The CB has now ordered that Khokhar’s petition be listed along with objections.

Khokhar termed the case one of the most consequential in Pakistan’s judicial history, saying the judiciary now faces a defining choice: to “reassert its independence or submit entirely to those traditionally hostile to it.”

Observers note that the exclusion of senior judges like Justices Syed Mansoor Ali Shah, Munib Akhtar, Athar Minallah, Shahid Waheed, and Malik Shahzad Ahmad Khan could undermine the bench’s legitimacy. They also question how a CB created under the 26th Amendment can adjudicate its own constitutionality.

Currently, the CB has 15 members, though previous challenges to constitutional amendments—such as the 18th and 21st—were heard by 17-member full courts.

Case History and Context

The 26th Constitutional Amendment Act, 2024, passed in October last year, brought sweeping changes to Pakistan’s judicial structure. It abolished the Supreme Court’s suo motu powers under Article 184(3), fixed a three-year term for the Chief Justice of Pakistan (CJP), and authorised the prime minister—through a parliamentary committee—to appoint the next CJP from among the three most senior judges.

The amendment also restructured the Judicial Commission of Pakistan (JCP), expanded parliamentary oversight in bench formation, and mandated the elimination of interest (Riba) from the financial system by January 1, 2028.

A total of 36 petitions filed by high court bar associations, PTI, civil society representatives, and former judges challenge the amendment, calling it an assault on judicial independence.

They argue that it shifts control over key judicial functions—appointments, nominations, and bench compositions—towards the executive, upsetting the constitutional balance of power.

Petitioners also allege that the amendment was rushed through Parliament without meaningful debate or proper two-thirds approval under Article 239 of the Constitution. They urge the Supreme Court to strike it down entirely or, at minimum, annul clauses altering the CJP’s appointment mechanism and the JCP’s composition.

Critics argue that the removal of suo motu powers strips the court of its ability to protect citizens’ fundamental rights, particularly in cases where vulnerable groups cannot approach the court directly. Proponents, however, claim it prevents judicial overreach and restores democratic balance.

Earlier, Justices Mansoor Ali Shah and Munib Akhtar had urged Chief Justice Yahya Afridi to convene a full court, citing the “constitutional magnitude” of the issue. The CJP declined, reasoning that a full court could expose internal judicial deliberations to unnecessary public scrutiny.

Petitioners continue to demand that the entire Supreme Court hear the matter, pointing to precedents like the 18th and 21st Amendment cases and the Supreme Court (Practice and Procedure) Act, 2023, where full benches were formed due to similar constitutional stakes.

With live streaming now approved, all eyes are on whether the CB will take the next crucial step—ordering a full court—to ensure that the judiciary’s own restructuring is debated by all its members in full public view.