26th amendment case: Justice Amin asks whether CJP can form a full court that includes judges serving on CB

ISLAMABAD: Justice Amin-ud-Din Khan questioned whether the Chief Justice of Pakistan (CJP) has the authority to form a Full Court that includes the judges serving on the Supreme Court’s Constitutional Bench.

Justice Amin was heading an eight-judge bench, which heard the petitions filed by former Chief Justice of Pakistan Jawad S Khawaja, the Pakistan Tehreek-e-Insaf, the Jamaat-e-Islami, the Sunni Ittehad Council, chairperson of the Tehreek-i-Tahaffuz Ayeen-i-Pakistan, Mustafa Nawaz Khokhar, and various bar councils and associations on Tuesday.

The live-stream for the hearing began with a delay of about 40 minutes due to internet issues. At the outset of the proceedings, Justice Amin said, “There are internet issues today. The live stream will not be possible.”

Justice Muhammad Ali Mazhar said the Supreme Court’s staff is working to fix the problem.

During the proceeding, heated words were exchanged between Justice Jamal and Justice Ayesha, when Justice Jamal Khan Mandokhail said, “The Supreme Court Rules, 2025, were made in front of all the 24 judges.” Justice Ayesha interjected, “Not before all the judges”, adding, “I have penned down my note in that regard.”

Irked by the response, Justice Jamal said, “The minutes of the Full Court meeting are requisitioned.”

“All the judges were asked to give their input to the Supreme Court before drafting the rules,” he added. He also said, “The case would not proceed further unless this issue is clarified.”

The Attorney General for Pakistan, present during the hearing, asked the judges that the court’s internal matter should not be discussed here. But Justice Jamal said, “But I have been proven wrong.” He further said that in 24-judge meeting, the rules were discussed and a few clauses of the rules were referred to a Committee, adding that some judges gave their input, but others did not.

Abid Shahid Zuberi, representing the former Presidents of the Supreme Court Bar Association (SCBA), responded to Justice Jamal’s question and said that the judges have the right to hear a case or not, adding that the petitioners are requesting the constitution of a Full Court.

Justice Jamal asked the counsel first to clarify his stance, because on the one hand you are saying the Full Court should be constituted, but at the same time, demanding that only pre-26th Amendment judges should hear this case.

Abid Zuberi, citing the Supreme Court judgment in the Practice and Procedure Act (PPA), 2023 case, said the Chief Justice of Pakistan (CJP) has the power to form a Full Court. He argued that in the instant matter, the petitioners won’t be able to file an appeal against the decision of the 8-member bench, as there are 15 judges of the constitutional bench, while for the hearing of an appeal at least nine judges are required.

Justice Ayesha A Malik remarked that now it’s in the Judicial Commission of Pakistan’s (JCP) prerogative whether to give someone the right to appeal or not, adding it could do so by nominating more judges in the constitution bench to grant the right to appeal. However, if the Commission does not want to, then it can deprive the right to appeal. She said that it is a matter of the independence of the judiciary.

Justice Jamal said the right to appeal won’t be available even if 16 judges hear this case.

Zuberi argued that the apex court has declared that if a verdict is based on collective wisdom, then no need for an appeal.

Justice Jamal stated that some lawyers have asked the bench to ignore Article 191A of the Constitution, adding he is unable to comprehend how to ignore this Article while hearing these petitions.

Justice Ayesha remarked that there are precedents of this Court that the constitutional provisions, under challenge, are kept aside. At that, Justice Jamal told Justice Ayesha, “Let Abid Zuberi attend this query.”

Justice Jamal then asked the counsel, on one hand, you talk about collective wisdom, but then you say only 16 judges of the Supreme Court should hear the matter. He said the benches are constituted in accordance with the Supreme Court Rules, 2025, and suggested that there should be a provision in the Rules, 2025, regarding the Full Court.

Zuberi said the Rules, which have been notified, Order 11 says that the Committee forms the benches. Justice Jamal told him that nowhere in the Rules is it written that the Chief Justice would form a Full Court. Zuberi responded that the Full Court is not a bench.

Justice Ayesha said that the Committees, set up under PPA and Article 191A of the constitution, have the power to constitute benches, but have no authority to form a Full Court. She also said the Committee’s power cannot be termed the authority of the Chief Justice. “These are two different jurisdictions; we are not talking about the benches, but the Full Court,” she remarked.

The case is adjourned until today (Wednesday).

Copyright Business Recorder, 2025