The Supreme Court on Thursday questioned whether it had the “power” to order the formation of a full bench under Section 191A while hearing challenges to the 26th Constitutional Amendment.
Advocate Munir A Malik, one of the petitioners’ lawyers, argued that the current constitutional bench retains full judicial powers to issue such a direction, but the judges questioned whether any constitutional or legal provision required the court to form a full bench or defined its scope.
Yesterday, the apex court live-streamed the proceedings of the earlier hearing held on petitions challenging the 26th constitutional amendment, with arguments focused on a plea for the constitution of a full court to hear the matter. The petitioners requested that the same “16-member” bench that existed when the amendment was passed in October 2024 should now deliberate on its legality in order to maintain continuity and constitutional legitimacy.
They argued that all major constitutional cases of the past – including those involving the 18th and 21st Amendments – have been heard by the full courts, emphasizing that current petitions, which directly concern judicial independence, deserve similar treatment.
The court, however, pressed counsel to identify the specific constitutional or statutory basis for such a reconstitution, asking under what provision it could form a full court which laid the groundwork for today’s hearing.
SC begins proceedings on 26th Amendment petitions
The Supreme Court on Tuesday allowed live streaming of proceedings in petitions challenging the 26th constitutional amendment, marking a major step toward transparency in a case that sparked one of the most consequential constitutional debates in recent years.
An eight-member Constitutional Bench (CB) headed by Justice Amin-ud-Din Khan acceded to the request of the petitioners. The bench’s unanimous decision was welcomed by lawyers and civil society, who called it a vital measure to ensure “public access” to legal proceedings involving issues of fundamental importance.
Lawyer Abdul Moiz Jaferii pointed out that live broadcasting in such cases had been recognized by the apex court as a public obligation. “This opens the doors of justice to anyone with an internet connection and provides access to the judicial decision-making process. This should be the norm in every superior court,” he said.
In an earlier hearing, the bench considered a series of petitions challenging the 26th Amendment, legislation that restructured judicial branches, changed occupancy standards and raised deep concerns about the independence of the judiciary. The court said it would first consider ways to form a full court before moving on to procedural requests such as live streaming.
Tehreek-i-Tahaffuz Ayeen-i-Pakistan Chairman Mustafa Nawaz Khokhar, represented by lawyer Shahid Jameel, pushed for the constitution of a full court, noting that “objections have been raised regarding our petition regarding the formation of a full court.” After deliberation, the bench ordered that the petition be formally registered.
Khawaja Ahmad Hosain, lawyer for former chief justice Jawad S Khawaja, demanded that the proceedings be televised live, arguing that “the entire nation wants to see what is happening”. He also supported live-streaming the plea in its entirety, emphasizing that the constitutional seriousness of the case required full transparency.
Lawyer Salahuddin argued that “every citizen should have access to information of public importance,” adding that the 26th Amendment was passed “in the middle of the night” without public debate. The Khyber-Pakhtunkhwa government representative said his party had “no personal objection to a judge sitting.”
After hearing the arguments, the court ruled in favor of live streaming of the proceedings.
Read: SC to live stream hearings challenging 26th Constitutional Amendment
However, legal experts warn that the real challenge for the petitioners will be to persuade the CB to order the constitution of a full court to hear the case, as several lawyers say a court formed under the contested amendment cannot impartially decide its own validity.
Former senator Mustafa Nawaz Khokhar has already filed a petition seeking implementation of the majority decision of the Supreme Court (Practice and Procedure) Act committee, which directed that petitions against the amendment be heard by a full court. The committee’s 2-1 majority decision, delivered on October 31, 2024, had directed the SC registrar to list the case for November 4, but this was never scheduled. The CB has now ordered that Khokhar’s petition be listed along with the objections.
Khokhar called the case one of the most important in Pakistan’s judicial history, saying the judiciary now faces a critical choice: “reassert its independence or submit entirely to those traditionally hostile to it.”
Observers note that the exclusion of senior judges like Justices Syed Mansoor Ali Shah, Munib Akhtar, Athar Minallah, Shahid Waheed and Malik Shahzad Ahmad Khan could undermine the legitimacy of the judiciary. They also question how a CB created under the 26th Amendment can judge its own constitutionality.
Currently, the CB has 15 members, although previous challenges to constitutional amendments – such as the 18th and 21st – were heard by full courts of 17 members.
Case history and context
The 26th Constitutional Amendment Act, 2024, passed in October last year, brought sweeping changes to Pakistan’s judicial structure. It abolished the suo motu powers of the Supreme Court under Article 184(3), fixed a three-year tenure for the Chief Justice of Pakistan (CJP) and authorized the Prime Minister, through a parliamentary committee, to appoint the next CJP from among the three senior-most judges.
The amendment also restructured the Judicial Commission of Pakistan (JCP), expanded parliamentary oversight of judicial training and made it mandatory to eliminate interest rate (Riba) from the financial system by January 1, 2028.
A total of 36 petitions filed by high court bars, PTI, civil society representatives and former judges are challenging the amendment, terming it an attack on judicial independence.
They argue that this shifts control of key judicial functions – nominations, appointments and seat composition – to the executive, thereby upsetting the constitutional balance of power.
The petitioners also claim that the amendment was rushed through Parliament without meaningful debate or two-thirds approval under Article 239 of the Constitution. They urge the Supreme Court to strike it down entirely or, at a minimum, strike down the clauses modifying the CJP appointment mechanism and the composition of the JCP.
Critics argue that removing suo motu powers strips the court of its ability to protect citizens’ fundamental rights, particularly in cases where vulnerable groups cannot approach the court directly. Proponents, however, say it avoids judicial overreach and restores democratic balance.
Earlier, Justices Mansoor Ali Shah and Munib Akhtar had urged Chief Justice Yahya Afridi to convene a full court, citing the “constitutional magnitude” of the issue. The CJP refused, reasoning that a full court could expose internal judicial deliberations to unnecessary public scrutiny.
The petitioners continue to demand that the full Supreme Court hear the case, pointing to precedents such as the 18th and 21st Amendment cases and the Supreme Court (Practice and Procedure) Act, 2023, where full benches were formed due to similar constitutional issues.
With live streaming now approved, all eyes are on the CB’s next crucial step – ordering a full court – to ensure the restructuring of the justice system is debated by all its members, in full view of the public.
