Can the fox guard the henhouse, the saying goes. For Pakistan’s highest court, the question is whether it can judge itself.
The Supreme Court is considering whether it can determine its own composition as it considers petitions challenging a controversial constitutional change that has reshaped Pakistan’s justice system.
During Monday’s hearing, judges from the eight-member constitutional panel raised pointed questions about whether they could hear a case challenging the very amendment that created their panel. Justice Jamal Khan Mandokhail put it this way: “If we are the beneficiaries [of the Amendment]can’t we be on the bench? Justice Mazhar then asked who else would hear the case.
What the amendment changed
The 26th constitutional amendment, adopted in October 2024, introduced sweeping changes to Pakistan’s judicial system:
- Abolished the suo motu power of the Supreme Court to take up cases alone
- Term set at three years for the chief justice
- Authorized a parliamentary committee to appoint the chief justice
- Restructuring of the Judicial Commission of Pakistan
- Mandatory elimination of interest (Riba) from the financial system by 2028
The central debate
The petitioners requested that a full court composed of judges appointed before the passage of the 26th Constitutional Amendment hear challenges to the legislation.
Justice Mandokhail questioned whether a party has the right to demand a seat of its choice, to which senior lawyer Abid Zuberi replied: “I don’t think a party has the right to choose a seat of its choice. But here we are demanding a full court on certain constitutional legal issues.”
When asked for clarification, Zuberi said judges appointed before the October 2024 amendment should decide the case. This position was supported by Hamid Khan of the Lahore High Court Bar Association and Munir Malik of the Balochistan High Court Bar Association.
The court currently has 24 judges in total.
The constitutional bench hearing the pleas is headed by Justice Aminuddin Khan and includes Justices Jamal Khan Mandokhail, Muhammad Ali Mazhar, Ayesha Malik, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhtar Afghan and Shahid Bilal Hassan.
In recent sessions, the justices have questioned whether the constitutional judiciary has the authority to issue orders to form a full court, as the petitioners have requested.
The meeting question
The exchanges revealed tensions over how the amendment would affect judicial appointments.
Justice Mandokhail observed that Chief Justice Yahya Afridi was appointed under the new amendment. Had it not been for this, Justice Mansoor Ali Shah, the Senior Puisne Justice, would have become the Chief Justice under the old seniority-based system.
The 26th Amendment replaced automatic succession by seniority with selection from among the three most senior justices of the Supreme Court. Asked if the Chief Justice could sit on a reconstituted bench, Mr Zuberi said it should be the decision of the Chief Justice.
Justice Mandokhail then questioned whether eight judges deciding the case would be different from a full court and whether the current constitutional bench would be seen as biased.
Mr Zuberi stressed that a full court represented “the collective spirit of everyone”, while Justice Aminuddin Khan noted that all judges remain bound by the Constitution.
The 26th Amendment abandoned the principle of seniority for the appointment of the chief justice and established criteria for selection among the three highest justices of the Supreme Court.
Read: Lawyers’ convention rejects 26th Amendment
Zuberi clarified that he did not describe them as “beneficiaries” of the legislation. Justice Mandokhail remarked: “So you are saying that it would be wrong for eight judges to decide the case. It will be the same whether eight of us sit or whether a full court sits.”
“Do you think the eight judges will become biased after currently sitting on the constitutional bench? he added, wondering who would decide the matter if the amendment under which the CB was created was challenged.
Zuberi emphasized that a full court represents “the collective minds of everyone.” Justice Aminuddin observed that judges are required to act in accordance with the Constitution.
The hearing was adjourned until 11:30 a.m. tomorrow.
How many petitions have been filed against the amendment?
Thirty-six petitions were filed by high court lawyers’ associations, political parties including Pakistan Tehreek-e-Insaf, civil society groups and former judges. They argue that the amendment transfers major judicial powers to the executive branch, undermining judicial independence, and that it was adopted without proper debate or the two-thirds approval required under Article 239 of the Constitution.
The petitioners seek either the complete rescission of the amendment or the rescission of specific changes to the appointments of chief justices and the composition of judicial commissions.
Critics say the removal of suo motu powers restricts access to justice. Proponents argue that this prevents judicial overreach.
The petitioners, including the Balochistan High Court Bar Association, argued that the same 16-member bench in place when the amendment was passed should hear the case to preserve constitutional legitimacy.
Senior advocate Munir A Malik argued that a full bench is part of the Supreme Court and can be constituted by the existing judiciary, including judges appointed after the amendment. Earlier appeals by Justices Mansoor Ali Shah and Munib Akhtar for a full court were rejected by CJP Yahya Afridi to avoid revealing internal deliberations.
The justices questioned the legal basis for reconstituting a full court, emphasizing that the Supreme Court’s jurisdiction remains intact and that all judges are bound by the amendment until it is struck down. Lawyer Abid Zuberi noted that a full court could be formed without all judges under the Pre-Amendment Practices and Procedures Committee.
Earlier, the Supreme Court had approved live streaming of the proceedings, with an eight-member constitutional bench headed by Justice Amin-ud-Din Khan granting the request. The petitioners, including Mustafa Nawaz Khokhar and former CJP’s lawyer Jawad S. Khawaja, argued that only a pre-amendment bench could impartially decide the legality of the amendment.
Learn more: SC deliberates on formation of full court amid 26th constitutional amendment challenge
Observers note that excluding high-ranking judges from the current judiciary could affect legitimacy. Khokhar described the case as crucial for the judiciary to “reassert its independence or submit entirely to those traditionally hostile to it.”
With the live broadcast approved, attention now turns to whether the CB will order a full court to deliberate on the amendment in full view of the public.
