A LONG-RUNNING controversy over the legitimacy of the 26th Amendment is back in the spotlight. A letter, authored by two of the senior-most justices serving in the Supreme Court, surfaced on Wednesday and was circulated on various social media forums. Unsurprisingly, it quickly became the topic of heated debates on the 26th Amendment and how a controversial piece of legislation enacted under questionable circumstances was allowed to become a fait accompli by the highest court.

The missive, which its authors said had been prompted by a recent decision to publish the minutes of an Oct 31, 2024, meeting of the court’s Practice and Procedure Committee, read like a riposte to two notes recently uploaded to the Supreme Court website and attributed to the chief justice, in which he had explained why challenges to the 26th Amendment were sent to the Constitutional Bench to adjudicate and not presented before a full court.

The controversy is already well known. However, the judges’ letter does shed some fresh light on the chief justice’s decision to set the petitions challenging the amendment before the Constitutional Bench. The judges point out that the meeting of the Practice and Procedure Committee, which decided to place the petitions before a full court bench, had been called in accordance with the relevant law, and the decision could not be ignored or overruled. This much was previously known. However, they assert that the decision was ignored after the chief justice informally and individually met the other judges of the court without their knowledge or involvement. The chief justice later concluded from these meetings that placing the matter before the full court “could dampen the much-needed spirit of collegiality among the judges and further expose the court to public scrutiny”.

That is certainly not a very satisfactory explanation, and the two senior judges appear correct in their indignation over the Committee being overruled. Arbitrary decision-making by past chief justices had been the primary justification for the Supreme Court Practice and Procedure Act, 2023, which subsequently mandated that the Committee decide all crucial issues before the court.

Meanwhile, “The challenges to the 26th Amendment continue to remain pending, and a golden opportunity to decide them […] before the institution as a whole — ie, the full court as it then stood — has been lost, perhaps irretrievably”, the judges regret in the letter. One hopes that this is not so.

The chief justice must reconsider. It has since become clear that this amendment has done substantial harm to both the judiciary and the constitutional order. The Supreme Court must decide this matter as a whole and reaffirm its solidarity in this moment of crisis.

Published in Dawn, August 22nd, 2025