A tense courtroom exchange unfolded in the Supreme Court of Pakistan on Wednesday as a lawyer petitioning against the 26th Constitutional Amendment demanded the case be transferred to a full court, prompting sharp inquiries from the presiding eight-member bench about its own authority and the counsel’s confidence in it.
The constitutional panel, headed by Justice Amin-ud-Din Khan, was hearing petitions challenging the amendment when counsel Khawaja Ahmad Hussain made the significant request. Representing petitioner Afrasiab Khattak, Hussain contended that the matter’s gravity necessitated adjudication by the entire court to safeguard the institution’s credibility.
The plea was immediately met with a direct question from Justice Jamal Khan Mandokhail, who asked the counsel, ‘Do you not have confidence in this bench? If we cannot hear the case, how can we direct that it be placed before a full court?’
Hussain clarified that his argument did not imply any lack of independence from the current judges but was rooted in the belief that the interpretation of Article 191A should be undertaken by the original full court.
Justice Ayesha Malik contributed to the legal discourse, remarking that Articles 191A(1) and 191A(3) should be read together as procedural outlines for forming benches. She observed that these provisions do not constitute a complete restriction on the Supreme Court itself, asking, ‘We are reading these provisions as though they impose a complete bar – where exactly is that bar?’
Further procedural questions arose when Justice Muhammad Ali Mazhar inquired whether a 16-member full court would be classified as constitutional or regular. Hussain responded that such a formation would be considered a regular bench.
The lawyer maintained that the current panel’s authority remained intact and no constitutional provision prevented it from referring the matter. He also alleged that the process through which the 26th Amendment was enacted did not comply with constitutional procedures.
After Justice Shahid Bilal Hassan noted that the request effectively sought a primary relief, Hussain specified that his petition’s immediate aim was a full court hearing, not the annulment of the amendment itself.
Justice Mandokhail posed a final hypothetical, questioning who would hear cases if an amendment were to curtail the Supreme Court’s powers. ‘Even if powers are curtailed, it is still the Supreme Court that will hear such matters,’ he remarked.
The bench subsequently adjourned further proceedings until Thursday.