An eight-member Constitutional Bench of the Supreme Court has resumed hearing over three dozen petitions against the 26th Constitutional Amendment.
The Amendment was passed by 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.
Justice Aminuddin Khan is heading the bench hearing the case. It also includes Justices Ayesha, Mohammad Ali Mazhar, Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhtar Afghan and Shahid Bilal Hassan.
Yesterday, Justice Ayesha observed that there was no bar on a full court hearing a case fixed before the Constitutional Bench under Article 191A introduced in the 26th Amendment.
Requests for full court
Thus far, Lahore High Court Bar Association (LHCBA) lawyer Hamid Khan, Balochistan High Court Bar Association’s (BHCBA) counsel Munir A. Malik, Afrasiab Khattak’s counsel Khwaja Ahmed Hosain, and petitioners Barrister Salahuddin Ahmed and Abid Shahid Zuberi have sought the formation of a 16-member full court as per the number of judges present in the SC in Oct 2024, when the Amendment was passed.
Other lawyers have also presented arguments for a 24-member full court based on judges present in the SC currently, including six who were appointed after the Amendment.
Judges have questioned whether the CB has the power to issue orders for the constitution of a full court, as requested by petitioners.
The case proceedings are being live-streamed on the SC’s YouTube channel since October 8, upon the petitioners’ request. 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 26th Amendment itself.
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.
