Pakistan top court presses lawyers to justify demand for full bench in key amendment case

Pakistan’s Supreme Court on Monday resumed hearings on challenges to the 26th constitutional amendment, as an eight-judge bench led by Justice Amin-ud-Din Khan pressed lawyers to justify calls for a full court, underscoring that any expansion must rest on legal grounds rather than procedural preference.

Passed by parliament and signed into law on October 21, 2024, the 26th Amendment introduced a parliamentary committee-based mechanism for the selection of the Chief Justice and fixed a three-year term for the office - provisions that have sparked intense debate among legal experts and opposition parties.

Since its enactment, the amendment has been challenged in the Supreme Court and several high courts by political parties, civil society groups, and bar associations. The Pakistan Tehreek-e-Insaf (PTI) has sought to strike down key sections of the law, arguing that it undermines judicial independence and violates the Constitution’s basic structure.

The Supreme Court began hearing the challenges in late 2024, with the most recent proceedings held in January 2025 before resuming again last week.

The hearing

During Monday’s proceedings, senior lawyer Abid Zuberi, appearing on behalf of former presidents of the Supreme Court Bar Association, urged the court to form a full bench. “This is a very important case, so a full court is necessary,” he said.

Zuberi noted that the Judicial Commission had already named 15 judges to the constitutional bench and argued that the court could issue administrative directions to expand it. “If our remit permits, the constitutional bench can pass a judicial order,” he added.

The current bench includes Justices Jamal Mandokhail, Muhammad Ali Mazhar, Ayesha Malik, Hassan Azhar Rizvi, Musarrat Hilali, Naim Afghan, and Shahid Bilal, alongside Justice Amin-ud-Din Khan.

The justices, however, pressed Zuberi on the legal foundation for convening a full court and whether the existing bench had authority to include or exclude judges. “Are we bound to change the bench?” Justice Jamal Mandokhail asked, later adding: “Why should a full court of 17 judges be formed? Why not 24?”, questioning the criteria for selecting which judges should sit.

The bench also discussed the role of the Chief Justice in such a scenario. “What will happen to the Chief Justice? Will the Chief Justice sit on the bench?” Justice Mandokhail inquired. Zuberi responded that the Chief Justice “will have to decide himself” whether to participate, noting there was no constitutional restriction against forming a full court.

Some justices raised concerns about potential conflicts of interest, particularly for judges directly affected by the amendment. “If the chief justice and the constitutional bench are beneficiaries, then how can they pass a judicial order?” Justice Musarrat Hilali asked, echoing questions about impartiality voiced during the hearing.

The bench examined the constitutional provisions relevant to the case. Justice Ayesha Malik pointed out that “Article 191A speaks only of constitutional benches,” while Justice Naim Afghan noted that “at this time Article 191A is part of the Constitution,” highlighting the court’s attention to both procedural and substantive legal questions.

Zuberi further argued that the composition of judges hearing the case should include only those who were serving prior to the amendment’s passage. “The judges who were present before the 26th Amendment should hear the case,” he said. The panel pressed him to clarify why pre-amendment judges alone should form the full court.

The discussion also focused on whether the current eight-member bench had the authority to order the formation of a full court and whether such an expansion could be made through administrative or judicial orders.

“Can the constitutional bench include judges who are not part of the constitutional bench?” Justice Muhammad Ali Mazhar asked.

After hearing the day’s arguments, the court adjourned the case until Tuesday for further deliberation on how - and by whom - a full court could be constituted to hear the challenges to the constitutional amendment.