SC Constitutional Bench resumes hearing pleas against 26th Amendment

An eight-judge Constitutional Bench (CB) of the Supreme Court (SC) on Wednesday resumed 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] 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 legislation had been challenged by various bar associations^[8], bar councils^[9], lawyers^[10], the PTI^[11], and some politicians^[12]. The SC is also seized with separate petitions seeking the formation of a full court^[13] to hear the matter, rather than the CB.

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^[14], and unanimously allowed^[15] live-streaming of the case upon some petitioners’ request.

The pleas taken up also seek the formation of a full court to hear the matter. 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.

During today’s hearing, Lahore High Court Bar Association (LHCBA) lawyer Hamid Khan requested the formation of a 16-member bench to hear the pleas, as per the number of SC judges at the time of the 26th Amendment.

Several judges observed that the 26th Amendment was currently part of the Constitution and raised questions pertaining to Hamid’s request. The hearing was then adjourned till 11:30am tomorrow.

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 hearing

At the outset of the hearing, Advocate Hamid came to the rostrum and said the 26th Amendment was introduced in an “unusual” manner and passed by the parliament at night^[18].

Hamid recalled that there were 17 judges present in the SC at the time the legislation was passed, including then-CJP Qazi Faez Isa, who later retired. Therefore, he contended, a 16-judge “full court” bench as of then should hear the pleas and pointed out that all eight judges in the current CB would be part of that bench as they were already serving as SC judges in October last year.

As per the SC’s website, there are currently a total of 24 judges in the SC, including CJP Yahya Afridi, after six new judges^[19] were appointed in February.

“This Amendment is against the very basic features of the Constitution,” he asserted, at which Justice Mandokhail said that the matter will be deliberated upon later and asked him whether the Amendment was currently a part of the Constitution.

In response to Hamid’s arguments, Justice Aminuddin remarked, “We depend on the Constitution. Lawyers also depend on the Constitution. Unless the Constitution is [further] amended, we will have to depend on the current Constitution.”

Justice Hilali also observed that whether the 26th Amendment was “right or wrong”, the court had not suspended it yet. “You consider the 26th Amendment a part of the Constitution, which is why you have challenged it.”

Here, Justice Mazhar noted that the CB was at the moment not considering the main case but the request for a full court and sought arguments on that.

Hamid responded that he was not detailing how the 26th Amendment was unconstitutional but on the “effects of its powers”. He said it was for the first time after the legislation that the “authority to form benches was taken away from the chief justice”.

Noting that the Judicial Commission of Pakistan (JCP) existed prior^[20] to last year’s constitutional tweaks, the LHCBA counsel said the 26th Amendment impacted the JCP’s formation as “judges became a minority” after the number of its members was increased^[21].

“After the Amendment, the majority in the Judicial Commission went to the administrative side, which affected judicial independence,” Hamid said.

Upon Justice Mandokhail asking Hamid whether he was acknowledging the 26th Amendment or not, the lawyer replied in the negative.

At this point during the hearing, Justice Mazhar wondered whether a bench constituted after the 26th Amendment could decide a plea seeking the formation of a full court.

Justice Mandokhail, however, remarked that the Amendment was part of the Constitution for now. At Justice Afghan pointing out that Hamid had not specified in his petition that “to whom should the bench send the case”, the lawyer said the matter should be referred to the CJP.

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^[22] 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^[23] being the substitution to Article 175A(3), and the provisions for constitutional benches in the SC^[24] and high courts^[25].

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^[26] and the Supreme Court (Number of Judges) (Amendment) Act 2024^[27] 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