Can the fox guard the henhouse, is the saying. For Pakistan's top court, it is the question of whether it can judge itself.
The Supreme Court is questioning whether it can determine its own composition as it considers petitions challenging a controversial change to the Constitution that reshaped Pakistan's judiciary.
During Monday's hearing, judges on the eight-member constitutional bench raised pointed questions about whether they could hear a case challenging the very amendment that created their bench. Justice Jamal Khan Mandokhail put it this way: “If we are the beneficiaries [of the Amendment], can we not be on the bench?” Justice Mazhar followed up by asking who else would hear the case.
What the amendment changed
The 26th Constitutional Amendment, passed in October 2024, introduced sweeping changes to Pakistan's judicial system:
- Abolished the Supreme Court's suo motu powers to take up cases on its own
- Fixed a three-year term for the chief justice
- Allowed a parliamentary committee to appoint the chief justice
- Restructured the Judicial Commission of Pakistan
- Mandated elimination of interest (Riba) from the financial system by 2028
The central debate
Petitioners have requested that a full court made up of judges appointed before the 26th Constitutional Amendment was passed, should hear the challenges to the legislation.
Justice Mandokhail questioned whether any party had the right to demand a bench of its choosing, to which Senior lawyer Abid Zuberi responded: “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.”
When asked to clarify, Zuberi said judges appointed before the October 2024 amendment should decide the case. This position was supported by Lahore High Court Bar Association’s Hamid Khan and Balochistan High Court Bar Association’s Munir Malik.
The court currently has 24 judges in total.
The constitutional bench hearing the pleas is led by Justice Aminuddin Khan and includes Justices Jamal Khan Mandokhail, Muhammad Ali Mazhar, Ayesha Malik, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhtar Afghan, and Shahid Bilal Hassan.
In recent sessions, judges have questioned whether the constitutional bench has the authority to issue orders to form a full court, as the petitioners have asked.
The appointment question
The exchanges revealed tensions over how the amendment affected judicial appointments.
Justice Mandokhail observed that Chief Justice Yahya Afridi was appointed under the new amendment. Without it, Justice Mansoor Ali Shah, the senior puisne judge, would have become chief justice under the previous seniority-based system.
The 26th Amendment replaced automatic succession by seniority with selection from the three most senior Supreme Court judges. When asked whether the Chief Justice could sit on a reconstituted bench, Mr Zuberi said it should be the Chief Justice's decision.
Justice Mandokhail then questioned whether eight judges deciding the case would differ from a full court, and whether the current constitutional bench would be considered biased.
Mr Zuberi emphasised that a full court represented "collective minds of everyone", whilst Justice Aminuddin Khan noted that all judges remain bound by the Constitution.
The 26th Amendment discarded the seniority principle for appointing the Chief Justice and established criteria selecting from the top three senior Supreme Court judges.
Read: Lawyers' convention rejects 26th amendment
Zuberi clarified that he had not described them as “beneficiaries” of the legislation. Justice Mandokhail 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.”
“Do you think the eight judges will become biased after sitting on the constitutional bench right now?” he added, questioning who would decide the case if the amendment under which the CB was formed was challenged.
Zuberi emphasised that a full court represented the “collective minds of everyone”. Justice Aminuddin remarked that judges are bound to act in accordance with the Constitution.
The hearing has been adjourned until 11:30 am tomorrow.
How many petitions have been filed against the amendment?
Thirty-six petitions have been filed by high court bar associations, political parties including Pakistan Tehreek-e-Insaf, civil society groups, and former judges. They argue the amendment transfers key judicial powers to the executive branch, undermining judicial independence, and was passed without proper debate or the required two-thirds approval under Article 239 of the Constitution.
Petitioners are seeking either full annulment of the amendment or reversal of specific changes to chief justice appointments and judicial commission composition.
Critics say removing suo motu powers restricts access to justice. Supporters argue it prevents judicial overreach.
Petitioners, including the Balochistan High Court Bar Association, argued that the same 16-member bench in place when the amendment was passed should hear the case to preserve constitutional legitimacy.
Senior lawyer Munir A Malik maintained that a full court is part of the Supreme Court and can be constituted by the current bench, including judges appointed post-amendment. Earlier calls by Justices Mansoor Ali Shah and Munib Akhtar for a full court were declined by CJP Yahya Afridi to avoid exposing internal deliberations.
Justices questioned the legal basis for reconstituting a full court, emphasizing that the Supreme Court’s jurisdiction remains intact and all judges are bound by the amendment until it is struck down. Advocate Abid Zuberi noted that a full court could be formed without all judges under the pre-amendment Practice and Procedure Committee.
Earlier, the Supreme Court approved live streaming of the proceedings, with an eight-member Constitutional Bench led by Justice Amin-ud-Din Khan granting the request. Petitioners, including Mustafa Nawaz Khokhar and former CJP Jawad S. Khawaja’s counsel, argued that only a pre-amendment bench could impartially decide on the amendment’s legality.
Read more: SC deliberates formation of full court amid 26th Constitutional Amendment challenge
Observers note that excluding senior judges from the current bench could affect legitimacy. Khokhar described the case as pivotal for the judiciary to “reassert its independence or submit entirely to those traditionally hostile to it.”
With live streaming approved, attention now turns to whether the CB will order a full court to deliberate on the amendment in full public view.
COMMENTS
Comments are moderated and generally will be posted if they are on-topic and not abusive.
For more information, please see our Comments FAQ