ISLAMABAD: A member of the eight-judge Constitutional Bench (CB) of the Supreme Court on Monday wondered whe­ther any litigant party arguing before a court enjoys the prerogative to ask for a particular bench to hear its case.

“Whether the CB has the authority to completely change the present composition of the bench, or any party can take advantage by deciding benches consisting of particular judges by removing the existing ones,” Justice Jamal Khan Mandokhail asked at the outset of Monday’s proceedings while addressing senior counsel Abid Shahid Zuberi.

The counsel appeared before the CB to represent former presidents of the Supreme Court Bar Association (SCBA), who had challenged the 26th Constitution Amendment.

Headed by Justice Ami­n­uddin Ahmed, the eight-judge CB was hearing a set of 36 petitions challenging the vires of the amendment.

Mr Zuberi conceded that no party has the right to ask for a bench of its choice but referred to the Supreme Court’s 1998 Malik Asad Ali case in which a matter was referred to a junior judge when the then chief justice (CJP) and the senior puisne judge declined to hear it.

The counsel said the present CB consists of 15 judges against the sanctioned strength of 24, of which eight were elevated after the passage of the 26th Amendment. Therefore, he argued, a full court of 16 pre-amendment judges should hear the case.

However, Justice Mandokhail recalled that during an earlier case when Justice Umar Ata Bandial was CJP, the counsel had opposed the formation of a full court. “Why should a full court consisting of all 24 judges not be formed to hear the present challenges to the 26th Amendment?” he asked.

Justice Naeem Akhtar Afghan observed that “whether we like it or not, Article 191A exists in the Constitution — a provision in which the concept of a full court is alien”. He pointed out that the precedents cited by the counsel were from an era when neither the Practice and Procedure Act existed — under which decisions regarding case fixing are taken by a three-judge committee — nor the 26th Amendment, which mandates that constitutional matters be decided by the CB.

Given this framework, Justice Afghan asked how the CJP could nominate judges to become members of a full court to hear the present challenges when the Judicial Commission of Pakistan (JCP) had not picked those judges for the CB. “Don’t you consider that the present eight-judge CB fulfils the criteria and requirements of the Constitutional Bench?” he asked.

The counsel argued that only those judges who were in office prior to the 26th Amendment should hear the case, since the very validity of the amendment was under challenge.

Justice Ayesha A. Malik said the CJP was appointed before the 26th Amendment and could, therefore, sit on the full court.

However, Justice Mandokhail pointed out that the CB could not direct the CJP to constitute the full court, as he had a direct interest after being appointed to the top position under the amended framework. Likewise, he said, the senior puisne judge (Justice Syed Mansoor Ali Shah) could also not sit on the bench since he was aggrieved for not being elevated as CJP. “If the present eight judges cannot hear the case, then who will?” the judge asked.

Justice Aminuddin Khan asked the counsel to explain how the current CB members were beneficiaries, noting that being part of the CB only added to their responsibilities. He said the real question was how the CB could confer jurisdiction on other judges who currently have none in the matter.

“Will we become biased when we sit in the CB?” Justice Mandokhail asked, also questioning who would determine objections if raised against the CB. He added that the committee formed under the Practice and Procedure Act has no authority to constitute a full court.

Justice Malik observed that Article 191A speaks of benches, not of a full court.

Justice Muhammad Ali Mazhar added that under Article 191A, “we, the judges, are members of the CB,” and asked, “Can we include or pass any order that judges who are not members be added to the CB?”

“What type of judicial order do you seek?” Justice Mazhar asked, when Justice Malik reiterated her request for the counsel to cite any bar on the CB passing such an order.

When it was pointed out that the CJP was a beneficiary and could not sit, Justice Mazhar remarked that the counsel wanted the matter to be referred to the senior puisne judge for the constitution of the full court.

The counsel clarified that the matter should first be referred to the CJP, and if he declines, it should then go to the senior puisne judge in order of seniority, as was done in the Malik Asad Ali case. He maintained that the jurisdiction to constitute a full court always vests with the CJP, an authority he still enjoys.

Justice Mandokhail then asked the counsel to define a full court. Mr Zuberi said the definition was provided in the Malik Asad Ali case, which ruled that all available judges constitute the full court.

Justice Malik pointed out that the majority opinion in the Practice and Procedure case had held that a full court was necessary for collective wisdom since the matter concerns the Supreme Court itself. She added that the majority opinion thus recognises the convention of a full court and distinguishes it from a bench.

Published in Dawn, October 14th, 2025