26th Amendment case: Justice Mazhar says regular benches cannot hear constitutional matters

Justice Muhammad Ali Mazhar on Monday observed that no Supreme Court benches besides the Constitutional Bench (CB) could hear constitutional matters as he and seven other judges heard petitions^[1] against the 26th Amendment^[2].

The Amendment was passed^[3] by Parliament^[4] during an overnight session in October last year, with the PTI claiming seven of its lawmakers were abducted^[5] to gain their favour as the party opposed the legislation. The Balochistan National Party-Mengal (BNP-M) also alleged its two senators^[6] were being pressured, with both later defying party^[7] line to vote in the tweaks’ favour.

The legislation, which altered judicial authority and tenure, has been a lightning rod for debate^[8], with both opposition parties and legal experts^[9] 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^[10] 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.

The bench hearing the pleas is headed by Justice Aminuddin Khan and also includes Justices Mazhar, Jamal Khan Mandokhail, Ayesha Malik, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhtar Afghan and Shahid Bilal Hassan.

Today, petitioner Muhammad Akram Sheikh^[11], one of the founding leaders of the Supreme Court Bar Association (SCBA) and its former president^[12], presented his arguments in the case. Retired Justice Syed Shabbar Raza Rizvi^[13], a former Lahore High Court judge, also began his arguments. The hearing was adjourned till 11:30am tomorrow.

The hearing

At the outset of the hearing, Justice Mandokhail asked Sheikh whether he was appearing on behalf of other petitioners in the case, to which the senior advocate replied that he was only representing himself.

Justice Mandokhail noted that Sardar Latif Khosa was stated as Sheikh’s counsel, at which the lawyer sought the judges’ permission to present his own arguments, saying he had the right to do so.

Justice Aminuddin then asked Sheikh to apprise the bench of a “constitutional path to form a full court”.

“We are bound by our oath. So far, not a single lawyer has presented their arguments as per the Constitution. One sahib also said^[14] to keep the Constitution aside,” the judge remarked.

Upon Justice Aminuddin asking Sheikh what a full court meant in his opinion, the latter termed the question a “futile debate”.

Then, as opposed to the other requests made so far for a “pre-Amendment” full court, Sheikh sought a full court comprising “all 24” of the present SC judges.

“This Constitutional Bench cannot hear this case,” he asserted, at which Justice Aminuddin noted that the question was how to include a “non-Constitutional Bench judge” in the proceedings.

Justice Mandokhail then asked, “Are you saying that even if there are 24 judges, it should not be called a Constitutional Bench but the Supreme Court?”

Calling the 26th Amendment “controversial”, Sheikh said that none of the “dictators” had “dented” the Constitution as much as the 26th Amendment.

The lawyer contended that the CB judges had two roles at the moment, out of which one was “controversial”. “I hope that God gives you the courage to strike down this Amendment,” he said.

Sheikh argued that the current eight-member CB was not eligible to strike down the 26th Amendment as it was constituted under the same legislation.

He added that it was a set principle that a smaller bench could not reverse the ruling of a larger bench.

Here, Justice Mazhar remarked, “The matter is new now. The Constitutional Bench has been formed. Give arguments based on the new circumstances.

“You say that this Constitutional Bench cannot strike down the 26th Amendment as it would be a conflict of interest. On the other hand, you say that a full court comprising all 24 judges should be formed. Will that full court of all 24 judges not have a conflict of interest?” Justice Mazhar asked.

In February, six judges^[15] were elevated^[16] to the SC — namely Justices Muhammad Hashim Khan Kakar, Muhammad Shafi Siddiqui, Salahuddin Panhwar, Shakeel Ahmad, Aamer Farooq, and Ishtiaq Ibrahim.

Justice Mandokhail also wondered whether having all 24 judges in the bench would mean that they would have the power to change an older decision.

Sheikh replied, “You yourself said that all Supreme Court judges may be nominated as members of the Constitutional Bench. […] I was glad that you have an all-inclusive approach. […] Whatever decision the Supreme Court will take, whatever collective wisdom of the honourable Supreme Court will prevail, that shall be acceptable.”

The ex-SCBA president further said, “There is an impression that the standard of the judiciary’s independence in Pakistan does not meet international standards.

“There was an election in our country. Some people thought that the election would be scrutinised. Then, a commission was made to prevent accountability, to prevent scrutiny. Background is relevant. […] As a result of which, this Constitutional Amendment came [into existence],” Sheikh claimed.

The lawyer recalled that he opposed the 18th Amendment in 2010 before the SC, because the advocate general and the law minister, being a part of the executive, should not have the right to vote in the JCP. He added that in 2015, India’s Supreme Court had struck down^[17] the 99th constitutional amendment, which aimed to give politicians and civil society a final say in appointing judges to higher courts, on a similar argument.

Justice Mandokhail told the lawyer to present his arguments on the Amendment later on, as first the CB had to decide which bench would hear the case.

“Keep talking about the world, but don’t say any word about the bench’s constitution,” Justice Aminuddin quipped.

Justice Mandokhail asked who would issue orders for the formation of a full court even if Sheikh’s argument that the CB could not hear the case was accepted.

Justice Bilal also questioned Sheikh about which bench had the power to strike down the 26th Amendment if the CB did not, to which the lawyer replied that the SC had to decide about the Amendment.

“Unless you prove that this bench is not eligible to hear the case, we cannot accept your request,” Justice Aminuddin remarked.

The bench then directed Sheikh to read out the Constitution’s Article 191A, under which the CBs in the apex court were introduced.

Justice Aminuddin remarked that some petitioners had asked the court to “refer” the matter ahead, while others had sought an “order”. Upon Justice Mandokhail asking Sheikh if he wanted the CB to issue an “order that the Supreme Court hear the case”, the lawyer replied in the affirmative.

Sheikh reiterated his request for a full court comprising all 24 judges, and added that if “any judge had any unease or burden on their conscience”, they could recuse from hearing the case.

The lawyer also voiced his support for the arguments of Advocate Malik, who represented the BHCBA.

“Can the parliament go against the salient features of the Constitution? Can the parliament abolish an organ of the state? Can the parliament go against the basic structure of the Constitution?” Sheikh asked.

Justice Hasan responded that these questions will be reviewed in the main case.

In his arguments, retired Justice Rizvi also requested that the SC, which is “made by combining Article 176 (constitution of SC) and Article 191A (CBs of the SC)”, hear the case.

Justice Aminuddin then asked how the CB could issue an order for the formation of a full court. Rizvi replied that the CB was a part of the SC even if it was formed under Article 191A, and like any other bench of the apex court, it could refer the case to the CJP or the Practice and Procedure Committee.

Justice Mandokhail then questioned: “Even if the Practice and Procedure Committee constituted a full court, what about Clause 3 of Article 191A, according to which no other bench [besides the CB] has the jurisdiction to hear constitutional cases?”

Rizvi responded, saying, “This is a matter of the independence of Pakistan’s judiciary; this bench will have to bear the pain.”

He contended that the judges in the CB were SC judges first and hence nominated for the CB, and that Articles 176 and 191A of the Constitution should be considered together.

Justice Mazhar remarked, “The Constitution is very clear that no bench other than the Constitutional Bench can hear constitutional matters.”

The retired judge again asked that the case be presented before the SC “constituted under Article 176”.

Justice Ayesha asked Rizvi whether he was in favour of a bench as per the number of judges before the 26th Amendment or after it, with Justice Mazhar wondering the same. Rizvi replied that he had no objection to all 24 judges hearing the case.

The hearing was then adjourned till 11:30am tomorrow (Tuesday).

The petitions

Thus far, Lahore High Court Bar Association (LHCBA) lawyer Hamid Khan^[18], Balochistan High Court Bar Association’s^[19] counsel Munir A. Malik^[20], and petitioners Barrister Salahuddin^[21] Ahmed and senior lawyer Abid Shahid Zuberi^[22] have presented their arguments.

They 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. 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^[23]. 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^[24], bar councils^[25], lawyers^[26], the PTI^[27], and some politicians^[28]. The SC is also seized with separate petitions^[29] 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^[30] 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^[31] being the substitution to Article 175A(3), and the provisions for constitutional benches in the SC^[32] and high courts^[33].

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^[34] and the Supreme Court (Number of Judges) Act 2024^[35] 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.