A high-stakes legal challenge against the 26th Constitutional Amendment saw a pivotal moment on Thursday when Supreme Court’s Justice Muhammad Ali Mazhar observed that the Constitutional Bench and the Supreme Court are not separate entities, asserting, ‘we are also judges of the SC.’
Justice Mazhar’s significant remarks came during a hearing before an eight-member larger bench, headed by Justice Amin-Ud-Din Khan, examining multiple petitions questioning the legality of the constitutional change. The panel also comprises Justice Ayesha A. Malik, Justice Syed Hassan Azhar Rizvi, Justice Musarrat Hilali, Justice Naeem Akhtar Afghan, Justice Jamal Khan Mandokhail, and Justice Shahid Bilal Hassan.
The constitutionality of the amendment has been contested by a broad coalition of petitioners, including the Pakistan Tehreek-e-Insaf (PTI), Jamaat-e-Islami (JI), Sunni Ittehad Council (SIC), and several bar associations from Lahore and Karachi, alongside former presidents of the Supreme Court Bar Association.
During the proceedings, the court summoned SIC’s lawyer, Uzair Karamat Bhandari, to present his case. The counsel advocated for the matter to be heard by a full court, which he contended already exists as a concept under judicial traditions, despite not being explicitly defined in the Constitution.
Bhandari argued that the SC’s Practice and Procedure Committee’s decision regarding the formation of a full court was correct and should be upheld. He further suggested that any judges who might be directly affected by the amendment could recuse themselves from the proceedings, but a full court should still be formed.
The judicial panel actively engaged with the counsel’s arguments. Justice Jamal Khan Mandokhail questioned the distinction created by the 26th Amendment, asking what difference existed between judges appointed before and after the new provision.
Justice Mazhar noted that the current bench was constituted under Article 191A and queried how the court could disregard that article while hearing a case challenging its validity. He acknowledged the counsel’s point that jurisdictional overlaps had occurred in past instances.
Adding to the judicial discourse, Justice Ayesha Malik observed that Article 191A appeared to confer additional powers upon the Supreme Court rather than stripping them. She posed a series of critical questions, asking if the Supreme Court would cease hearing constitutional matters under Article 184(3) if the Constitutional Bench was not in place, and whether the composition of future full courts would depend on nominations under the new article.
Following the detailed arguments, Justice Amin-Ud-Din Khan adjourned the hearing until November 10, stating that the next date would be subject to the availability of the bench.