ISLAMABAD: A member of the eight-judge Constitutional Bench wondered on Wednesday what legal constraints under Article 191A prevented them from directing the Judicial Commission of Pakistan (JCP) to form a full court comprising all 16 ‘pre-26th Amendment’ judges.
The observation from Justice Ayesha A. Malik came during the hearing of a set of 36 different challenges to the 26th Amendment, presided over by Justice Aminuddin Khan.
Justice Malik noted that there seemed to be no absolute bar on the CB from issuing any judicial order requiring the JCP to nominate members to the bench under Article 191A.
Senior counsel Abid Shahid Zuberi, representing a number of former presidents of the Supreme Court Bar Association (SCBA), argued that the CB’s judicial powers remained intact to pass any order for the formation of a full court, consisting of 16 judges.
Justice Mazhar questions whether increasing number of its judges is within the bench’s purview
Justice Aminuddin Khan observed that the commission had its own authority to exercise. Does that mean the JCP was above the authority of the Supreme Court, Justice Malik asked, adding that if the CB cannot pass a judicial order, would it mean that the full court will never convene in the future.
There is no denying the fact that the Supreme Court has the power to review and undo any decision, Justice Jamal Khan Mandokhail observed, adding that the JCP had the power to nominate all judges of the Supreme Court to the CB, but the lawyers in the present case wanted only pre-26th amendment judges to sit in the full court.
Can we challenge the decision of JCP if it decides in the future that any member or all the members of the present CB are no longer required on the bench, asked Justice Mandokhail.
At this, Justice Ayesha Malik interjected, saying that if the JCP decides that no more judges will be included in the CB since such a bench is not required, will the commission have a final say in this? Can the Supreme Court be barred from exercising its constitutional jurisdiction to review such a decision, she wondered.
According to her, the constitutional jurisdiction is always vested with the Supreme Court, and the amendment has merely taken away the power by stating that certain benches will hear certain cases.
Justice Malik observed that it was a tradition of the top court, especially after the Practice and Procedure case, that important matters were heard and decided by the full court.
Justice Khan, however, explained that under the Constitution, both the Supreme Court and the JCP enjoyed certain distinct powers.
Justice Muhammad Ali Mazhar wondered whether the CB’s jurisdiction included the authority to increase the number of its judges to hear the challenge at hand. Will it not go exceed the scope of Article 175 of the Constitution if the CB itself decides to constitute a full court, he wondered.
Justice Naeem Akhtar Afghan wondered could the CB pass an order requiring the JCP to constitute a full court, bypassing the procedures, as such decisions were always taken by majority through voting.
During the hearing, Justice Mandokhail also shared that during the past few sessions of the commission, some members suggested including certain judges in the present CB, but other members objected to the proposal saying that the commission could enhance the number of the CB but nominations with specific names were being made.
At this, Justice Khan reminded that it was his stance during the meeting that, being the head of the three-judge committee constituted under Article 191A, it was his prerogative to nominate any judge to the CB. Earlier, at the outset of proceedings on Wednesday, senior counsel Akram Sheikh, asked for judicious time allocation for each lawyer to ensure the smooth progress of the case.
At this, Justice Jamal Khan Mandokhail agreed, saying that whatever transpired on Tuesday should not have happened, adding that “it was not that serious”.
He was referring to the heated debate between Justices Jamal Khan Mandokhail and Ayesha Malik over the SC Rules, which had laid bare simmering tensions at the apex court.
Published in Dawn, October 16th, 2025