Pakistan’s top court examines scope of judicial authority in key amendment case

Pakistan’s Supreme Court resumed hearings on Tuesday on petitions challenging the 26th constitutional amendment, with senior judges engaging in a pointed debate over judicial independence, appeal rights, and the authority to form a full court to hear the case.

An eight-member constitutional bench, headed by Justice Aminuddin Khan, is hearing the petitions. The bench also includes Justices Jamal Khan Mandokhail, Muhammad Ali Mazhar, Ayesha Malik, Hasan Azhar Rizvi, Musarrat Hilali, Naeem Afghan, and Shahid Bilal.

Passed by parliament and signed into law on October 21, 2024, the 26th Amendment introduced sweeping changes to the process of appointing the Chief Justice of Pakistan, establishing a parliamentary committee to oversee the selection and fixing a three-year term for the office. The law has faced strong criticism from legal experts and opposition parties, who argue that it undermines the separation of powers and judicial independence.

Since its passage, the amendment has been challenged in the Supreme Court and various high courts by political parties, bar associations, and civil society groups. The Pakistan Tehreek-e-Insaf (PTI) is among the petitioners, seeking to annul key provisions of the law on constitutional grounds.

The Supreme Court began hearing the petitions in late 2024, with earlier sessions held in January 2025.

The hearing

During the hearing, several judges expressed serious concerns about the implications of the amendment for judicial authority and due process.

“How can we sideline a constitutional article?” asked Justice Jamal Khan Mandokhail, referring to suggestions that Article 191-A could be set aside in the proceedings.

Justice Ayesha Malik observed that the right of appeal now rests with the Judicial Commission of Pakistan. “If the commission chooses not to nominate more judges, even the right to appeal could be taken away,” she warned. “This directly concerns judicial independence.”

Justice Mandokhail added that even a larger bench would not automatically guarantee appeal rights. “Even a 16-member bench wouldn’t necessarily mean a right of appeal,” he remarked, citing earlier Supreme Court rulings that collective decisions may not require an appeal process.

Advocate Abid Zuberi, representing former presidents of the Supreme Court Bar Association, continued his arguments, contending that the current eight-member bench lacks the authority to ensure proper appellate oversight. “The constitutional bench comprises 15 nominated judges. For appeals, at least nine more judges would be needed,” he said. “The current setup denies us the right to appeal.”

Referring to previous verdicts, including the Practice and Procedure case, Zuberi urged that a full court — composed of judges who were in office before the contested amendment — be constituted to ensure legitimacy.

Justice Aminuddin Khan pressed for clarification. “Don’t just say full court,” he said. “Be clear — you’re referring to those judges who were present before the constitutional amendment?”

Justice Mandokhail followed up, saying, “One moment you say form a full court, then say only 16 judges should hear the case. Make your request clear first.”

Disagreement over CJ’s authority and transparency in proceedings

A central question in Tuesday’s hearing was whether the Chief Justice of Pakistan has the power to constitute a full court. Justice Ayesha Malik clarified that the committee’s authority is limited. “The Committee can constitute benches, but it cannot form a full court. Committee powers are not the same as the Chief Justice’s powers,” she said. “We are discussing a full court, not regular benches.”

Zuberi, however, maintained that the Chief Justice retains the authority to form a full court, citing precedents where such steps had been taken in earlier constitutional cases.

The discussion also turned tense when Justice Mandokhail and Justice Ayesha Malik exchanged remarks about transparency and internal procedures in the court’s rule-making process.

“Let’s call for the meeting minutes,” Justice Mandokhail suggested after Justice Malik mentioned that not all decisions had been unanimous. He added, “This case won’t move forward until this is clarified. I feel I am being refuted.”

At this point, the Attorney General intervened, urging the bench to avoid delving into internal court matters in open session.

Justice Ayesha Malik emphasized that the case strikes at the core of judicial independence and must be handled with “thoroughness and transparency.”

Proceedings were briefly disrupted by technical issues, with the court unable to establish a video link for live streaming. Justice Aminuddin Khan confirmed the streaming failure, while Justice Muhammad Ali Mazhar noted continuing network problems.

The hearing was adjourned until 11.30am on Wednesday, with Abid Zuberi set to resume his arguments.