A Supreme Court justice on Monday raised profound questions about the legitimacy of the very judicial body hearing challenges to the 26th Constitutional Amendment, asking who could possibly rule on a law that established the bench’s own composition.
The critical inquiry emerged as an eight-member constitutional bench, led by Justice Aminuddin Khan, resumed proceedings on petitions challenging the amendment. The petitioners, including former presidents of the Pakistan Bar Council (PBC), have advocated for the case to be heard by a full court.
During the session, Justice Jamal Khan Mandokhail posed the central dilemma, inquiring, ‘If the amendment under which this constitutional bench has been formed is itself challenged, then who will decide on the objection?’
Justice Mandokhail also probed the influence of political demands on judicial appointments, asking if the court was obligated to accommodate requests for specific judges. ‘Are we bound to alter benches at their request? Does any party want us to be given a particular bench or specific judges?’ he questioned.
Adding to the constitutional debate, Justice Naeem Akhtar Afghan noted that the term ‘full court’ is absent from Article 191 of the Constitution, which outlines the Supreme Court’s authority. ‘Whether you like it or not, Article 191 exists,’ he remarked. ‘Given its presence, don’t you think the judges of the constitutional bench themselves constitute the full court?’
Representing the petitioners, senior lawyer Abid Zuberi clarified his request, stating that only judges who served before the 26th Amendment was enacted should preside over the matter. This prompted Justice Mandokhail to highlight a potential conflict of interest, observing that without the amendment, Justice Yahya Afridi would have become Chief Justice. ‘If the Chief Justice himself is a beneficiary of the 26th Amendment, can he still sit on the bench?’ he asked. ‘If we are beneficiaries of this amendment, can we then sit on this bench?’
When Justice Muhammad Ali Mazhar asked who would be left to hear the case under those circumstances, Zuberi asserted he was not alleging bias but seeking the ‘collective wisdom’ of a full court.
The discussion also touched on the bench’s power to order its own reconstitution. Justice Mazhar mentioned that administrative powers are no longer the sole domain of the Chief Justice, while Justice Musarrat Hilali questioned whether a bench could issue a judicial order when its own formation was being contested.
Justice Mandokhail stressed the importance of consistent legal standards, stating, ‘Let’s not pick and choose principles. We must apply the same standard across cases.’
The court adjourned the hearing until Tuesday, instructing the counsel to prepare arguments on whether the current constitutional bench, under Article 191, effectively serves as the full court for such matters.