• Petitioners argue amendment passed without full parliament, relied on defectors’ votes
• Want case to be heard by full court
ISLAMABAD: Against the backdrop of growing calls for an early hearing, an eight-judge Constitutional Bench (CB) of the Supreme Court will resume on Oct 7 proceedings on a set of petitions challenging the 26th Constitution Amendment.
Headed by Justice Aminuddin Khan, the bench also includes Justices Jamal Khan Mandokhail, Muhammad Ali Mazhar, Ayesha A. Malik, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhtar Afghan and Shahid Bilal Hassan.
On Aug 20, senior puisne judge Justice Syed Mansoor Ali Shah and Justice Munib Akhtar had written a joint letter following the SC decision to make public the Oct 31, 2024 committee’s minutes that called for a full court meeting to determine the vires of the 26th Amendment.
Two responses from Chief Justice of Pakistan (CJP) Yahya Afridi were uploaded on the court’s website on Aug 14, explaining why he had disregarded the committee’s decision. The CJP had argued that such a move would undermine the much-needed spirit of collegiality among judges and expose the apex court to public comment, which, he noted, had regrettably been the case in the recent past.
In their joint letter, Justice Shah and Justice Akhtar observed: “The challenges to the 26th Amendment continue to remain pending and a golden opportunity to decide them at the earliest instance before the institution as a whole — i.e. the full court as it then stood — has been lost, perhaps irretrievably.”
The last hearing on the challenges was held on Jan 27, when the Constitutional Bench had asked different petitioners to consider the existing eight-judge bench as the full court. At that hearing, Justice Mazhar noted: “This is not the domain of the CB to constitute the Full Court or refer the matter to the Chief Justice of Pakistan after Article 191A of the Constitution.” He explained that a Full Court cannot be formed merely on the wishes of lawyers.
Justice Aminuddin Khan, however, issued notices to the respondents on points raised by counsel regarding reference of the matter to the Full Court, the amendment’s impact on judicial independence, and arrangements for live streaming of proceedings.
The Supreme Court is currently seized with multiple petitions filed by the PTI, individuals and various high court bar associations, urging the constitution of a Full Court to hear the matter rather than the Constitutional Bench formed under the 26th Amendment.
The petitions had argued that the process through which the amendment was passed contravened Articles 63A, 238 and 239 of the Constitution, pointing to the absence of a fully constituted parliament, the inclusion of defecting members’ votes and other procedural irregularities that allegedly rendered its passage unconstitutional and of no legal effect.
The petitioners also sought to have Sections 7, 9, 10, 12, 14, 17, 21 and 27 of the 26th Amendment declared unconstitutional, ultra vires and in direct conflict with the Constitution’s salient features and, therefore, void ab initio.
They pleaded that any appointments made by individuals or bodies pursuant to the 26th Amendment and its consequential legislation were unlawful and without authority, and should be set aside.
The petitions also called for the Supreme Court (Practice and Procedure) Act 2024 and the Supreme Court (Number of Judges) (Amendment) Act 2024 to be declared unconstitutional, void ab initio and of no legal effect, since they stem from an unconstitutional amendment and represent an attempt to achieve unconstitutional designs.
Published in Dawn, September 24th, 2025
