26th amendment case: SC asks petitioners why they want constitution of ‘selected’ bench

ISLAMABAD: The Supreme Court questioned the petitioners as to why they called for constituting a selected bench or specific judges to hear the 26th Constitutional Amendment case, and how the Constitutional Bench can direct the Chief Justice of Pakistan to form a Full Court.

During the proceeding on Monday, Justice Musarat Hilali asked would it be appropriate to ask incumbent Chief Justice of Pakistan to set up a Full Court, who is also appointed as a consequence of the 26th Amendment.

An eight-member Constitutional Bench of the Supreme Court, headed by Justice Amin-ud-Din Khan, 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 Tehreek-i-Tahaffuz Ayeen-i-Pakistan Mustafa Nawaz Khokhar, and various Bar Councils & Associations. The hearing was live-streamed on SC official YouTube channel.

Abid Shahid Zuberi, appearing on behalf of the Balochistan Bar Council and Association, argued that this bench is competent to pass a judicial order directing the Chief Justice for the constitution of the Full Court, but it will be implemented on the administrative side.

Justice Hilali remarked when the petitioners were objecting to the present bench, then how come it can pass an order to Justice Yahya Afridi, or any Committee to constitute Full Court.

Justice Jamal Khan Mandokhail stated when a bench has no jurisdiction, then instead of hearing the matter, it can return it to the Committee. He questioned whether any party has the right to choose judges or bench(es) for hearing of its case. “Whether it’s binding on us to change the bench, and whether it is the prerogative of any party that so and so judge should hear his case.”

Zuberi replied no one has any right that a selected bench hears his case.

Justice Jamal then further asked from the counsel as to why he wanted the Full Court to hear this case? He said if a Full Court is constituted then, in his opinion, who should be its members. Zuberi replied that there are a number of Supreme Court judgments which say that an important case, which involves the constitutional questions, be heard by the Full Court. He said pre-26th amendment judges should hear this case. He then cited SC judgment in Asad Malik’s case, saying it is about the constitution of the Full Court, comprising all available judges.

Justice Amin observed that this judgment was against the Chief Justice of the Supreme Court, adding in that case a two-judge bench sent the matter to the senior puisne judge for constituting Full Court, but when he declined then they ordered to place it before the next the most senior judge.

Justice Jamal asked Zuberi, “Why do you want that pre-26th Amendment judges should hear these petitions? He said the incumbent Chief Justice was appointed, as a result of 26th Amendment. The judge questioned if this is a demand that seven judges, appointed after 26th, should not hear this petition and only remaining eight judges hear it, but there will be an objection on them with some of the quarters would say that they also have conflict of interest.

Justice Muhammad Ali Mazhar told the counsel that your point is that the judges in present bench are the beneficiaries of 26th Amendment, while the incumbent CJP also benefited from 26th Amendment.

Abid Zuberi said that presently there are 24 judges in the Supreme Court. The apex court had 15 judges before the enactment of the 26th Amendment and these 15 judges are entitled to hear these petitions.

Justice Ayesha A Malik noted that Article 191A of the constitution does not talk about the Full Court, and only benches are mentioned in it. There is no bar that this bench cannot pass a judicial order for constituting the Full Court, which is necessary when dealing with the question of constitutional importance.

She said the jurisdiction under Articles 184 (3), 186, 187 and 189 of the Constitution is vested with the Supreme Court, while Article 191A mentions the constitutional bench. She further said that the constitution of the Full Court is also necessary as they are not hearing challenges to a law, but here before them is the constitutional amendment.

Justice Mazhar then questioned whether this bench, set up by Article 191A of the constitution, has the jurisdiction, to direct the Chief Justice to form Full Court, adding, “Can this bench also pass an order that those judges who are not members of the Constitution Bench, be included in the bench for hearing of this case?” He said this bench is for the protection of the constitutional provisions and not the statutory protection, “Our jurisdiction is limited under Article 191A of the constitution,” he added.

Justice Jamal questioned if a constitutional case is pending before the Full Court then whether after the introduction of Article 191A should it be heard by the constitutional bench? Zuberi argued that under Article 175(2) the Supreme Court has the inherent jurisdiction.

Justice Mazhar inquired from the counsel whether the matter is referred to the Chief Justice or the senior puisne judge for setting up Full Court, adding after the promulgation of SC (Practice and Procedure) Act, (PPA) 2023 the chief justice is not “Master of Roster”, therefore not empowered to form the Full Court, then should this bench direct the Committee under the PPA for setting up Full Court.

The hearing was adjourned until today (Tuesday).

Copyright Business Recorder, 2025