SC Constitutional Bench to resume hearing pleas against 26th Amendment today

An eight-judge Constitutional Bench (CB) of the Supreme Court (SC) will today resume proceedings on a set of pleas^[1] challenging the 26th Amendment^[2].

The Amendment, which was approved^[3] by both^[4] houses of parliament in October last year, altered judicial authority and tenure, and has been a lightning rod for debate^[5] with both opposition parties and legal experts questioning^[6] its impact on the judiciary’s autonomy.

It 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^[7] to appoint the next 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 legislation had been challenged by various bar associations^[8], bar councils^[9], lawyers^[10], the PTI^[11], and some politicians^[12].

The CB is headed by Justice Aminuddin Khan and also includes Justices Jamal Khan Mandokhail, Muhammad Ali Mazhar, Ayesha Malik, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhtar Afghan and Shahid Bilal Hassan. It resumed proceedings yesterday after over eight months^[13], and unanimously allowed^[14] live-streaming of the case upon some petitioners’ request.

The SC is also seized with multiple petitions seeking the formation of a full court^[15] to hear the matter, rather than the CB. Hence, before proceeding further, the court will first determine^[16] whether the challenges should be heard by a full court comprising all available SC judges or by the same eight-judge CB.

Requests to form a full court bench and to live stream the case dominated yesterday’s hearing, with the state lawyer expressing no objection^[17] to live stream the proceedings.

The petitions

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^[18] of high court judges by the Judicial Commission of Pakistan being inserted in Article 175A(1) and Articles 175A(18) to (20); the provisions relating to the appointment of the CJP^[19] being the substitution to Article 175A(3), and the provisions for constitutional benches in the SC^[20] and high courts^[21].

As a consequence, the court should declare that the original Article 175A(3) holds the field and direct the federal government to notify SC’s senior-most judge as CJP in accordance with the original Article 175A(3), the petitioners argued.

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 Supreme Court (Practice and Procedure) Act 2024^[22] and the Supreme Court (Number of Judges) (Amendment) Act 2024^[23] 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.