On Thursday, the Supreme Court debated whether it has the “authority” to order the formation of a full court under Article 191A while hearing challenges to the 26th Constitutional Amendment.
Advocate Munir A Malik, one of the petitioners’ lawyers, argued that the current constitutional bench retains full judicial powers to issue such an order, but the judges questioned whether any constitutional or legal provision compels the court to form a full bench or defines its scope.
Yesterday, the high court live-streamed proceedings from the previous hearing held on petitions challenging the 26th Constitutional Amendment, with arguments centered on a petition to constitute a full court to hear the case. The petitioners urged that the same “16-member” bench that existed when the amendment was passed in October 2024 should now deliberate on its legality to maintain continuity and constitutional legitimacy.
They argued that all major constitutional cases of the past (including those involving the 18th and 21st Amendments) were heard by full courts, highlighting that current petitions, which directly affect judicial independence, deserve similar treatment.
The court, however, pressed counsel to identify the specific constitutional or statutory basis for such a reconstitution, asking under what provision a full court could be formed to lay the groundwork for today’s hearing.
SC begins proceedings on 26th Amendment petitions
The Supreme Court on Tuesday allowed live streaming of proceedings on petitions challenging the 26th Constitutional Amendment, marking an important step toward transparency in a case that has sparked one of the most important constitutional debates in recent years.
An eight-member Constitutional Court (CB) headed by Justice Amin-ud-Din Khan accepted the petitioners’ request. The court’s unanimous decision was welcomed by lawyers and civil society, who called it a vital measure to ensure “public access” to judicial proceedings involving issues of fundamental importance.
Lawyer Abdul Moiz Jaferii noted that live streaming in such cases had been recognized by the top court as a public obligation. “It opens the doors of justice to everyone with an Internet connection and allows access to the judicial decision-making process. It should be the norm in every high court,” he said.
In an earlier hearing, the court considered a set of petitions against the 26th Amendment, legislation that restructured the judiciary, altered tenure rules and raised deep concerns about the independence of the judiciary. The court indicated that it would first address requests seeking the formation of a full court before moving on to procedural requests such as live streaming.
Tehreek-i-Tahaffuz Ayeen-i-Pakistan president Mustafa Nawaz Khokhar, represented by lawyer Shahid Jameel, pushed for the constitution of a full court, pointing out that “objections were raised to our petition regarding formation of a full court.” After deliberations, the court ordered that the petition be formally registered.
Khawaja Ahmad Hosain, lawyer for former Chief Justice Jawad S Khawaja, requested that the proceedings be broadcast live, arguing that “the entire nation wants to see what is happening.” He also supported the live broadcast of the argument before the full court, highlighting that the constitutional seriousness of the matter required full transparency.
Attorney Salahuddin argued that “all citizens should have access to information of public importance,” adding that the 26th Amendment was passed “in the dead of night” without public debate. The Khyber-Pakhtunkhwa government representative said his side had “no personal objection to any judge in the court.”
After hearing arguments, the court ruled in favor of live streaming the proceedings.
Read: SC to livestream hearings challenging 26th Constitutional Amendment
However, legal experts warn that the real challenge for the petitioners will be to persuade the CB to order the constitution of a full court to hear the matter as several lawyers argue that a court formed under the impugned amendment cannot impartially decide its own validity.
Former senator Mustafa Nawaz Khokhar has already filed a petition seeking implementation of the majority decision of the Supreme Court’s Law (Practice and Procedure) Committee, which ordered that petitions against the amendment be heard by a full bench. The committee’s 2-1 majority ruling, issued on October 31, 2024, had ordered the SC Registrar to list the case on November 4, but it was never scheduled. The CB has now ordered that Khokhar’s petition be included along with the objections.
Khokhar called the case one of the most consequential in Pakistan’s judicial history and said the judiciary now faces a defining choice: “reassert its independence or submit completely to those traditionally hostile to it.”
Observers point out that the exclusion of senior judges such as Justices Syed Mansoor Ali Shah, Munib Akhtar, Athar Minallah, Shahid Waheed and Malik Shahzad Ahmad Khan could undermine the legitimacy of the court. They also question how an OC created under the 26th Amendment can adjudicate its own constitutionality.
Currently, the CB has 15 members, although previous challenges to constitutional amendments (such as the 18th and 21st) were heard by full courts of 17 members.
Case history and context
The 26th Constitutional Amendment Act of 2024, passed in October last year, brought sweeping changes to Pakistan’s judicial structure. It abolished the suo motu powers of the Supreme Court under Article 184(3), fixed a three-year term for the Chief Justice of Pakistan (CJP) and authorized the prime minister, through a parliamentary committee, to appoint the next CJP from among the three senior judges.
The amendment also restructured the Judicial Commission of Pakistan (JCP), expanded parliamentary oversight in the formation of benches and ordered removal of interest rate (Riba) from the financial system by January 1, 2028.
A total of 36 petitions filed by high court bar associations, PTI, civil society representatives and former judges question the amendment, calling it an assault on judicial independence.
They argue that it transfers control over key judicial functions (appointments, nominations, and court composition) to the executive, upsetting the constitutional balance of power.
The petitioners also allege that the amendment was hastily passed in Parliament without meaningful debate or proper two-thirds approval under Article 239 of the Constitution. They urge the Supreme Court to repeal it completely or, at the very least, annul the clauses that alter the appointment mechanism of the CJP and the composition of the JCP.
Critics argue that the removal of suo motu powers strips the court of its ability to protect citizens’ fundamental rights, particularly in cases where vulnerable groups cannot go directly to the court. However, its defenders claim that it prevents judicial overreach and restores democratic balance.
Earlier, Justices Mansoor Ali Shah and Munib Akhtar had urged Chief Justice Yahya Afridi to convene a full court, citing the “constitutional magnitude” of the issue. The CJP refused, arguing that a full court could expose internal judicial deliberations to unnecessary public scrutiny.
The petitioners continue to demand that the entire Supreme Court hear the matter, pointing to precedents such as the 18th and 21st Amendment cases and the Supreme Court (Practice and Procedure) Act, 2023, where entire courts were formed due to similar constitutional interests.
Now that the livestream has been approved, all eyes are on whether the CB will take the crucial next step (ordering a full court) to ensure that the judiciary’s own restructuring is debated by all its members in public view.
