Pakistan’s top court debates who can sit on full bench in constitutional amendment case

Pakistan’s Supreme Court grappled on Wednesday with a fundamental question in a hearing on pleas challenging the 26th constitutional amendment, over who has the authority to decide which judges can sit on a full bench to hear the case.

An eight-member constitutional bench, headed by Justice Aminuddin Khan, resumed proceedings amid sharp exchanges over whether additional judges could be included or if that power rests solely with a special committee. The bench also includes Justices Jamal Khan Mandokhail, Muhammad Ali Mazhar, Ayesha Malik, Hasan Azhar Rizvi, Musarrat Hilali, Naeem Afghan, and Shahid Bilal.

“You are asking for a 16-member bench, not a full court,” observed Justice Aminuddin Khan during the packed hearing that reflected the deep divisions within the legal fraternity over the amendment.

Passed by parliament and signed into law on October 21, 2024, the 26th Amendment brought sweeping changes to the judicial appointment process, introducing a parliamentary committee to oversee the selection of the chief justice of Pakistan and fixing a three-year term for the post. Critics - including opposition parties and legal experts - have warned that the law undermines the separation of powers and judicial independence.

The amendment has since faced a flurry of petitions in the Supreme Court and various high courts from political parties, bar associations, and civil society groups. The Pakistan Tehreek-e-Insaf (PTI) is among those challenging the law, seeking to strike down key provisions as unconstitutional.

The Supreme Court began hearing the petitions in late 2024, with earlier sittings held in January 2025. The current phase of hearings has zeroed in on the powers conferred by Article 191-A (rules of procedures) and whether it allows for the formation of a “full court” bench.

Today's hearing

Senior lawyer Abid Zuberi, representing former presidents of the Supreme Court Bar Association, opened his arguments by saying, “I will conclude my arguments today.” Justice Jamal Mandokhail responded wryly, “We hope so, as you have been arguing for the past three to four days.”

Lawyer Akram Sheikh also addressed the court, urging calm and civility. “Judges and lawyers should exercise restraint. The hearing should start in the name of Allah to end bitterness,” he said. Justice Mandokhail reassured him: “There is no serious issue. Please be assured.”

Zuberi contended that while the constitutional committee has the power to form benches, it may only include the 15 judges designated under Article 191-A. “The committee cannot add other judges to a constitutional bench,” he argued, adding that the practice and procedure committee could only form regular benches.

Justice Muhammad Ali Mazhar questioned the legal foundation of Zuberi’s position. “You are relying on precedents from before Article 191-A existed,” he remarked. “Today’s bench is constituted under Article 191-A. Are you asking us to add judges to this bench while remaining within this article?”

Justice Ayesha Malik explored whether the bench itself could direct the judicial commission to expand its composition. “What stops us from asking the commission to include other judges?” she asked. “Does this mean the judicial commission is above the Supreme Court?”

Justice Mandokhail replied, “The judicial power of the court is above the commission. If the commission acts unlawfully, we can review it.”

The bench also debated whether a full court could still be formed after Article 191-A came into effect. “Does this mean a full court can never sit again?” Justice Malik asked. Justice Mazhar observed that her interpretation of Article 191-A had shifted the entire basis of Zuberi’s argument.

Justice Mandokhail raised practical considerations. “If all judges are nominated to the constitutional bench, who will form the full court? The committee only has the power to constitute benches,” he said. Zuberi replied that the issue should be referred to the Chief Justice.

Justice Naeem Akhtar Afghan questioned whether the court could intervene in the judicial commission’s internal voting. “If the commission does not nominate all judges, can we interfere in that process through a judicial order?” he asked. Zuberi responded that while the bench could direct the commission to expand the number of judges, it could not dictate who sits on it.

Justice Musarrat Hilali noted that only the constitutional bench committee could seat judges under Article 191-A. “For a full court, the matter has to go to the Chief Justice,” she said.

Justice Aminuddin added that the court currently has a sanctioned strength of 34 judges. “If your request is accepted, the remaining judges would not be able to hear appeals,” he cautioned.

Zuberi concluded by clarifying his intent: “I cannot get the bench of my choice. I only want this important constitutional case to reflect the collective wisdom of all judges.”

After extensive exchanges, the Supreme Court adjourned the hearing until Monday.