Justice Ayesha says 26th Amendment does not bar full court from hearing cases before Constitutional Bench

Justice Ayesha Malik on Wednesday observed that there was no bar on a full Supreme Court hearing a case fixed before the Constitutional Bench under Article 191A introduced in the 26th Amendment.

She made the remarks as an eight-member resumed hearing over three dozen petitions against the 26th Constitutional Amendment, which was passed^[1] by Parliament^[2] during an overnight session in October last year.

At the time, the PTI claimed seven of its lawmakers were abducted^[3] to gain their favour as the party opposed the legislation. The Balochistan National Party-Mengal (BNP-M) also alleged its two senators^[4] were being pressured, with both later defying party line^[5] to vote in the tweaks’ favour.

The legislation, which altered judicial authority and tenure, has been a lightning rod for debate^[6], with both opposition parties^[7] and legal experts^[8] 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^[9] 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^[10].

The hearing

Advocate Khwaja Ahmad Hosain^[11], counsel for veteran politician Afrasiab Khattak^[12], presented his arguments today.

The live stream^[13] of the hearing initially faced technical issues, with the audio being cut off. However, the issues were later resolved with proceedings being streamed as per usual. The hearing was later adjourned till 11:30am tomorrow (Thursday).

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.

At the outset of the hearing, Hosain emphasised that the judiciary’s reputation “does not depend on the 26th Constitutional Amendment”. “This case should be heard by a different independent bench,” the lawyer asserted.

Justice Mandokhail then asked, “Do you not trust this bench?”, at which the lawyer said that a decision on Article 191A^[14] — through which the CB in the apex court was introduced — should be taken by the “original full court”.

Justice Rizvi noted that Hosain’s petition did mention the term “original full court”. The counsel clarified that he did not say “this bench is not independent”.

Justice Mandokhail remarked, “You yourself said that the case should be kept before another independent bench. Will we judges be included in that ‘independent bench’?”

Justice Aminuddin also wondered whether CJP Yahya Afridi would be a part of that “independent bench”, to which Hosain replied that he “absolutely would be”.

Here, Justice Mandokhail questioned Hosain that if the current CB “could not hear this case, how could it issue any order?”.

The lawyer replied, “Why is the court seeking a path to issue an order? So far, the Centre has not raised any objection to a full court or [the CB] issuing any order.”

Justice Aminuddin responded that each lawyer had their own stance, and that the bench was raising questions after considering the Constitution. “Some lawyers are even saying to keep aside the Amendment,” Justice Mandokhail observed.

At one point, Justice Mazhar noted, “If 26 judges are included, then it will become a regular bench.” Hosain also agreed that it would not be a constitutional bench.

Justice Mandokhail recalled Dr Adnan Khan’s arguments^[15] from yesterday, in which he contended that the SC and the CB were separate entities. The judge then directed the lawyer to detail when the concept of benches came into existence.

When Justice Mazhar mentioned that some lawyers argued that other SC judges can also be included in the current bench, Hosain asserted that the CB was also a bench of the apex court.

Justice Ayesha then directed the counsel to read Article 191A in conjunction with its Clause 3^[16], which says “no bench of the Supreme Court other than a Constitutional Bench shall exercise the following jurisdictions vested in the Supreme Court”, with the latter including the SC’s original jurisdiction under Article 184.

Justice Ayesha observed that the provision said the specified jurisdictions were to be exercised by the SC’s CB. “For some reason, we keep reading this as an ouster to say that no one else will [hear the case]. It simply says no other bench will do it.”

She further said that even if Article 191A was interpreted to mean that “no other bench” will hear such cases, it meant that the CB would hear “a case on the original jurisdiction of the Supreme Court” and interpret the Constitution.

“Where is the bar? […] It (the CB) is reading the provisions of the Constitution and interpreting it, and in doing that interpretation, it is saying that […] because this is a matter of a Constitutional Amendment, we interpret this to mean that a full court can hear the matter. Would that make sense?”

Justice Ayesha remarked, “I am speaking for myself; I, in the first case, said I don’t see a bar.” She added that as per Article 191A, the Judicial Commission of Pakistan^[17] (JCP) is to nominate judges for the CB.

The judge termed Article 191A a “procedural” provision. She noted that while it imposes restrictions on benches, it does not on the SC, adding that the CB was interpreting the provisions as if they impose a “complete restriction”.

Justice Mazhar then expressed his “complete agreement” with Hosain’s argument that contention that a 16-member bench will be a regular bench, and not a CB.

Hosain contended, “If you say that your hands are tied, then that is not the case. Nowhere is it written that a Constitutional Bench cannot refer the matter to the full court.”

Justice Mandokhail then wondered whether the lawyer meant that the CB could not refer the case to a regular bench but could do so to a full court. “But then that will also be a regular bench. He (Hosain) said that a 16-member bench will be a regular one,” the judge added.

Hosain replied that the judges’ powers had not been taken away from them. “If, let’s suppose, the parliament tomorrow decides under a 27th amendment that an executive officer will preside over the Supreme Court, will you judges not be able to review that decision? You definitely can,” he said.

Khattak’s counsel argued that the appropriate procedure for passing^[18] the 26th Amendment had not been followed, at which Justice Mazhar said this question could be raised before the attorney general for Pakistan (AGP) when arguing on the merits of the case.

At one point, Justice Hassan remarked that the lawyer was “seeking the main relief” through his current petition before the CB.

Hosain replied, “My CMA (civil miscellaneous application) does not say strike down the 26th Amendment. My CMA is very focused, which is what is before your lordships now. It is ‘please send these cases to the original full court […] and there is nothing stopping you from doing that’.”

During the hearing, Justice Mandokhail wondered who would hear such a challenge if the “jurisdiction of the entire Supreme Court was taken away through any Constitutional amendment”.

“Even if the powers are taken away, the same Supreme Court will hear it,” he observed, recalling previous arguments that the current CB was not eligible to hear the case against the same 26th Amendment that led to it.

Hosain reiterated that there was no bar on the CB referring the matter to the full court, adding that he was not seeking a final decision from the current bench, but a directive to forward the case to the full court.

“Your lordships have the power. Please do not underestimate your power,” the counsel said. Hosain then concluded his arguments, following which the hearing was adjourned till tomorrow.

Requests for full court

Thus far, Lahore High Court Bar Association (LHCBA) lawyer Hamid Khan^[19], Balochistan High Court Bar Association’s (BHCBA^[20]) counsel Munir A. Malik^[21], and petitioners Barrister Salahuddin Ahmed^[22] and 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.