SC Constitutional Bench resumes proceedings on challenges to 26th Amendment
An eight-judge Constitutional Bench (CB) of the Supreme Court (SC) on Tuesday resumed hearing a set of pleas challenging the 26th Amendment, which altered judicial authority and tenure, and has been a lightning rod for debate with both opposition parties and legal experts questioning its impact on the judiciary’s autonomy.
The Amendment, which was approved by both houses of parliament in October last year, took away the SC’s suo motu powers, set the chief justice of Pakistan’s (CJP) term at three years and empowered the prime minister to appoint the next CJP from among the three most senior SC judges.
It also paved the way for the formation of the CB, which is now hearing petitions against the very legislation that led to its establishment.
The CB that has taken up the pleas — filed by various high court bar associations, the PTI and others — against the Amendment is headed by Justice Aminuddin Khan and comprises Justices Jamal Khan Mandokhail, Muhammad Ali Mazhar, Ayesha Malik, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhtar Afghan and Shahid Bilal Hassan.
The last hearing of the case was held on January 27, and there have been calls for the proceedings to be resumed on priority.
Today’s hearing
When the proceedings commenced today, Justice Aminuddin Khan said the bench would first hear arguments on requests for a full court hearing of the pleas and objections on CB. “We will decide on the matter of live streaming (of court proceedings) later,” he added.
At that, lawyer Khawaja Ahmad Hassan argued that arguments on pleas seeking a full court hearing should be live-streamed so that the public was also made aware of the grounds on which the request was being made. He then urged the court to first hear arguments on requests for the live streaming of the proceedings.
To that, Justice Aminuddin Khan remarked that matters of the bench were of relevance to the court, not the public.
The petitions
The petitioners have requested the apex court to strike down the entire 26th Amendment on grounds of procedural impropriety if determined that the requisite two-thirds of the lawfully elected membership of each House did not freely exercise their right to vote in favour of the same as required under Article 239, which elaborates on bills and their passage to amend the Constitution.
In the alternative, the petitioners pleaded, the court should strike down certain provisions of the 26th Amendment since they substantively undermine the independence of the judiciary which is a salient feature of the Constitution: namely the provisions for annual performance evaluation of judges of the high court by the Judicial Commission of Pakistan being inserted in Article 175A(1) and Articles 175A(18) to (20); the provisions relating to the appointment of the chief justice of Pakistan being the substitution to Article 175A(3), and the provisions for constitutional benches of the apex court and high courts.
As a consequence, the court should declare that the original Article 175A(3) holds the field and direct the federal government to notify SC’s senior-most judge as CJP in accordance with the original Article 175A(3), the petitioners argued.
The petitioners also challenged the constitutionality of the constitutional benches, arguing that the SC should declare invalid all amendments for which votes of such members whose election disputes were pending were necessary to achieve the prescribed numerical threshold in Article 239.
They also called for the Supreme Court (Practice and Procedure) Act 2024 and the Supreme Court (Number of Judges) (Amendment) Act 2024 to be declared unconstitutional, void ab initio and of no legal effect, since they stem from an unconstitutional amendment and represent an attempt to achieve unconstitutional designs.
The petitioners also requested the SC for a full court hearing of the pleas instead of a hearing by the CB, which was established under 26th Amendment.
‘Opportunity lost’
Between January and now, there have been mutiple calls for a full court hearing of these pleas.
On August 14, two responses from Chief Justice of Pakistan Yahya Afridi were uploaded on the court’s website, explaining why he had disregarded a decision made last year by a committee to bring challenges to the 26th Amendment before the full SC.
The committee, which met on Oct 31, 2024, under the Practice and Procedure Act (PPA) 2023, was convened by senior puisne judge Justice Syed Mansoor Ali Shah and Justice Munib Akhtar. In response, CJP Afridi, who chairs the committee, said he did not find it appropriate to call for a full court hearing.
The CJP had argued that such a move would undermine the much-needed spirit of collegiality among judges and expose the apex court to public comment, which, he noted, had regrettably been the case in the recent past.
On Aug 20, Justices Shah and Akhtar wrote a joint letter to the CJP, following the SC decision to make public the Oct 31 committee’s minutes.
In their joint letter, Justice Shah and Justice Akhtar observed: “The challenges to the 26th Amendment continue to remain pending and a golden opportunity to decide them at the earliest instance before the institution as a whole — i.e. the full court as it then stood — has been lost, perhaps irretrievably.”
Call for full court hearing
The call for the full court hearing was also made during the last hearing of the pleas on Jan 27. When the hearing had commenced, several lawyers had surrounded the judges’ rostrum to request the bench to refer the matter to a full court.
The request was also supported by Justice Ayesh Malik, who cited full court hearings of challenges to 18th Amendment, 21st Amendment and Supreme Court (Practice and Procedure) Act, 2023.
The CB, however, had asked various petitioners to consider the existing eight-judge bench a full court. At that hearing, Justice Mazhar had noted: “This is not the domain of the CB to constitute the Full Court or refer the matter to the Chief Justice of Pakistan after Article 191A of the Constitution.” He had explained that a full court could not be formed merely on the wishes of lawyers.
Moreover, Justice Aminuddin Khan had issued notices to the respondents on points raised by counsels regarding the referral of the matter to a full court, the amendment’s impact on judicial independence, and arrangements for live streaming of proceedings.
The amendment has altered the judicial authority and tenure; opposition parties and legal experts have questioned its impact on judiciary’s autonomy.
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