26th Amendment case: Justice Mazhar says regular, constitutional benches ‘branches of the same tree’

Justice Muhammad Ali Mazhar on Tuesday remarked that the Supreme Court’s regular and constitutional benches (CBs) were “branches of one tree” as an eight-member CB heard arguments on petitions^[1] challenging 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 line^[7] 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^[9] and legal experts^[10] 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^[11] 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^[12].

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.

Retired Justice Syed Shabbar Raza Rizvi, a former Lahore High Court judge, concluded his arguments^[13] today. Dr Adnan Khan, counsel for Anas Ahmed, also presented his contentions. The hearing was adjourned till 11:30am tomorrow.

During yesterday’s hearing^[14], senior lawyer Muhammad Akram Sheikh and retired Justice Rizvi, sought a full court comprising all 24 current SC judges, as opposed to multiple petitioners’ requests for a bench of 16 judges present in the apex court when the Amendment was passed.

The hearing

As Rizvi continued his arguments, Justice Mandokhail said, “Even if we accept your stance that the Supreme Court and the bench are separate, then this shows that the bench’s suo motu power is maintained but has been taken away from the Supreme Court.”

However, Rizvi replied that while the CB had been given some powers under the 26th Amendment, none were taken away from the apex court.

Referring to the provision that was introduced through the 26th Amendment, Justice Hilali observed, “The amendment has been made in the Constitution. Article 191A^[15] has come into existence and constitutional benches have been made under it.

“Now you are saying there should be a full bench. So will we need to go into the pre-Amendment era […] and suspend the 26th Amendment for it?” she asked, adding that how Article 191A can be “bypassed”.

Rizvi responded that Article 191A should be read in conjunction with other provisions, not on its own. He argued that Article 191A had not “ended the Supreme Court’s jurisdiction under Article 184(3)^[16]” (original jurisdiction).

At this, Justice Mazhar observed that the powers under Article 184(3) had been transferred to the CB under Article 191A, adding that the latter provision “clearly mentioned” the same.

Rizvi then proceeded to cite several past judgments to support his arguments, adding that Article 191A should be read with Article 176, which provides the constitution of the SC.

The retired judge noted that despite having special powers, the Federal Shariat Court (FSC) was a part of SC and could also use powers vested in the apex court under Article 187^[17] (issue and execution of SC processes) of the Constitution.

He termed Article 187 a “helpful provision to enact complete justice^[18]”.

“The Constitutional Bench can also use powers provided under Article 187. The Constitutional Bench was also made within the Supreme Court, right?” Justice Mazhar said.

Justice Aminuddin remarked that the question at hand was not about the CB’s powers, but rather how to “make judges of non-constitutional benches” part of the CB.

Rizvi, echoing Sheikh’s arguments from yesterday, contended that the CB judges had two roles: “You are the Supreme Court and the Constitutional Bench as well.”

At this, Justice Mazhar remarked, “Regular bench and Constitutional Bench, both are two branches of one tree. […] Nobody is saying it (CB) is not the Supreme Court, or above or below it.”

The petitions

Thus far, Lahore High Court Bar Association (LHCBA) lawyer Hamid Khan^[19], Balochistan High Court Bar Association’s^[20] counsel Munir A. Malik^[21], and petitioners Barrister Salahuddin Ahmed^[22] and senior lawyer Abid Shahid Zuberi^[23] 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^[24]. 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^[25], bar councils^[26], lawyers^[27], the PTI^[28], and some politicians^[29]. The SC is also seized with separate petitions^[30] 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^[31] 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^[32] being the substitution to Article 175A(3), and the provisions for constitutional benches in the SC^[33] and high courts^[34].

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^[35] and the Supreme Court (Number of Judges) Act 2024^[36] 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