ISLAMABAD: The Supreme Court’s constitutional bench on Monday commenced proceedings on a set of challenges to the 26th Amendment, telling lawyers representing different petitioners to consider the existing eight-judge bench a ‘full court’.

“This is not the domain of constitutional bench to constitute full court or refer the matter to Chief Justice of Pakistan after Article 191A [came into being],” Justice Muhammad Ali Mazhar explained, adding that full court could not be formed merely on the wishes of the lawyers.

Asking lawyers to consider the constitutional bench ‘a full court’, the SC judge said lawyers were confused about the issue.

He noted that when one of the counsel was requesting for the formation of a full court “through a judicial order”, others were demanding that the matter be referred to the full court, indicating that the lawyers were confused about this issue.

Notices issued to respondents as SC takes up pleas against 26th Amendment

However, before postponing further hearing for three weeks, Justice Aminuddin Khan, who was heading the constitutional bench, issued notices to the respondents on the points highlighted by the lawyers ranging from referring the matter to full court and judiciary’s independence to arrangements for the livestreaming of the proceedings.

Earlier when the hearing commenced, several lawyers, including senior counsel Hamid Khan, surrounded the rostrum to request the bench to refer the matter to full court.

The request was also supported by Justice Ayesha A. Malik, also a member of CB in that she conceded about the precedence when full court heard the challenges to 18th Amendment, 21st Amendment and Supreme Court (Practice and Procedure) Act, 2023.

At one point, Justice Jamal Khan Mandokhail asked the counsel if the present constitutional bench was not part of constitution and whether they had not taken oath under the constitution. “We are not sitting here for a tiff,” he said.

Justice Musarrat Hilali wondered whether the lawyers representing different petitioners were suggesting the bench members were required to take fresh oaths after the passage of the 26th Amendment.

Justice Mandokhail reminded that the Judicial Commission of Pakistan (JCP) had nominated judges to the constitutional bench and all judges listed by JCP were part of the present eight-judge bench, also explaining that JCP nominates judges while a three-member committee only fixes cases before it.

“Even if the full court is formed, you will raise a new objection,” Justice Mandokhail remarked, adding that the counsel then might demand to separate those judges from the full court who were part of the constitutional bench.

When Advocate Uzair Bhandari said the house was not complete when the 26th Amendment was adopted “without discussion in a secretive manner”, Justice Mandokhail questioned whether anyone raised the issue of quorum.

Advocate Khwaja Ahmad Hosain argued that the amendment contravened the principle of separation of judiciary from the executive and the independence of judiciary.

He said the court was duty bound to look into the amendment and strike it down to preserve the constitution. “This will ensure credibility of the judiciary, whi­ch is very dear to all the people of this country,” he said.

Published in Dawn, January 28th, 2025