Can the fox guard the henhouse?, the saying goes. For Pakistan’s highest court, the question is whether it can judge itself.
The Supreme Court is wondering whether it can determine its own composition as it considers petitions challenging a controversial change to the Constitution that overhauled Pakistan’s judiciary.
During Monday’s hearing, judges on the eight-member constitutional chamber raised pointed questions about whether they could hear a case challenging the same amendment that created their chamber. Judge Jamal Khan Mandokhail put it this way: “If we are the beneficiaries [of the Amendment]“Can’t we be on the bench?” Judge Mazhar went on to ask who else would hear the case.
What the amendment changed
The 26th Constitutional Amendment, passed in October 2024, introduced sweeping changes to Pakistan’s judicial system:
- The suo motu powers of the Supreme Court to take up cases alone were abolished.
- A three-year term was set for the Chief Justice.
- It allowed a parliamentary committee to appoint the chief justice.
- Judicial Commission of Pakistan restructured
- Mandatory elimination of interest (Riba) from the financial system by 2028
The central debate
The petitioners have requested that a full court, made up of judges appointed before the 26th Constitutional Amendment was passed, hear challenges to the legislation.
Justice Mandokhail questioned whether any party had the right to demand a court of its choice, to which senior lawyer Abid Zuberi replied: “I don’t think any party has the right to choose a court of its choice. But in this case, we are asking for a full court on some constitutional legal issues.”
When asked for clarification, Zuberi said judges appointed before the October 2024 amendment should decide the case. This position was supported by Hamid Khan of the Lahore High Court Bar Association and Munir Malik of the Balochistan High Court Bar Association.
The court currently has 24 judges in total.
The constitutional bench hearing the pleas is headed by Justice Aminuddin Khan and includes Justices Jamal Khan Mandokhail, Muhammad Ali Mazhar, Ayesha Malik, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhtar Afghan and Shahid Bilal Hassan.
In recent sessions, judges have questioned whether the Constitutional Chamber has the authority to issue orders to form a full court, as the petitioners have requested.
The question of the appointment
The exchanges revealed tensions over how the amendment affected judicial appointments.
Justice Mandokhail observed that Chief Justice Yahya Afridi was appointed under the new amendment. Without him, Justice Mansoor Ali Shah, the senior puisne judge, would have become chief justice under the previous seniority-based system.
The 26th Amendment replaced automatic succession by seniority with selection from among the three highest-ranking justices of the Supreme Court. Asked whether the Chief Justice could sit on a reconstituted court, Zuberi said it should be the Chief Justice’s decision.
Justice Mandokhail then questioned whether eight judges who would decide the case would differ from a full court, and whether the current constitutional court would be considered biased.
Zuberi emphasized that a full court represented “the collective minds of all,” while Justice Aminuddin Khan noted that all judges remain bound by the Constitution.
The 26th Amendment discarded the principle of seniority for appointing the Chief Justice and established criteria for selecting among the three chief justices of the Supreme Court.
Read: Bar convention rejects 26th amendment
Zuberi clarified that he had not characterized them as “beneficiaries” of the legislation. Justice Mandokhail commented: “So you are saying that eight judges would decide the case would be wrong. It will be the same whether we sit eight or a full bench.”
“Do you think the eight judges will become biased after sitting on the constitutional court right now?” he added, questioning who would decide the case if the amendment under which the CB was formed was challenged.
Zuberi emphasized that a full court represented the “collective minds of everyone.” Justice Aminuddin stressed that judges are required to act in accordance with the Constitution.
The hearing was adjourned until tomorrow at 11:30 am.
How many petitions have been filed against the amendment?
Thirty-six petitions have been filed by high court bar associations, political parties including Pakistan Tehreek-e-Insaf, civil society groups and former judges. They argue that the amendment transfers key judicial powers to the executive branch, undermining judicial independence, and was passed without adequate debate or the two-thirds approval required under Article 239 of the Constitution.
The petitioners seek the complete annulment of the amendment or the repeal of specific changes in the appointments of chief justices and the composition of judicial commissions.
Critics say removing suo motu powers restricts access to justice. Supporters argue it prevents judicial overreach.
The petitioners, including the Balochistan High Court Bar Association, argued that the same 16-member bench in existence when the amendment was passed should hear the case to preserve constitutional legitimacy.
Senior advocate Munir A Malik argued that a full bench is part of the Supreme Court and can be constituted by the present bench, including judges appointed after the amendment. CJP Yahya Afridi rejected earlier calls by Justices Mansoor Ali Shah and Munib Akhtar for a full court to be convened to avoid exposing internal deliberations.
The justices questioned the legal basis for reconstituting a full court, emphasizing that the Supreme Court’s jurisdiction remains intact and all justices are bound by the amendment until it is repealed. Lawyer Abid Zuberi noted that a full court could be formed without all judges under the Practice and Procedure Committee prior to the amendment.
Earlier, the Supreme Court approved live streaming of the proceedings, with an eight-member Constitution Bench headed by Justice Amin-ud-Din Khan granting the request. The petitioners, including Mustafa Nawaz Khokhar and former CJP lawyer Jawad S. Khawaja, argued that only a pre-amendment court could impartially decide on the legality of the amendment.
Read more: SC deliberates on formation of full court amid challenge to 26th Constitutional Amendment
Observers note that excluding senior judges from the current court could affect legitimacy. Khokhar described the case as pivotal for the judiciary to “reassert its independence or submit completely to those traditionally hostile to it.”
With the approval of the live broadcast, attention now turns to whether the CB will order a full court to deliberate on the amendment in public view.
