Can the fox protect henhouse, it says. For Pakistan’s supreme court, it is the question of whether it can judge itself.
The Supreme Court questions whether it can determine its own composition as it considers petitions that challenge a controversial change of the constitution that reshaped Pakistan’s judiciary.
During Monday’s consultation, judges on the eight-member constitutional bench raised questions about whether they could hear a case that challenged the actual amendment that created their bench. Justice Jamal Khan Mandokhail put it this way: “If we are the recipients [of the Amendment]Can’t we be on the bench? “Justice Mazhar followed up by asking who would otherwise hear the case.
What the amendment changed
The 26th Constitutional amendment adopted in October 2024 introduced sweeping changes to Pakistan’s legal system:
- Abolished the Supreme Court’s Suo Motu powers to take cases alone
- Corrected a three -year period for Chief Justice
- Allowed a parliamentary committee to appoint Chief Justice
- Restructured the legal commission in Pakistan
- Mandate Limination of Interest (Riba) from the Financial System in 2028
The central debate
The petitioners have requested that a full court consisting of a judge appointed before the 26th constitutional amendment be adopted should hear the challenges of the legislation.
Justice Mandokhail questioned whether any party had the right to demand a bench after it chose, as senior lawyer Abid Zuberi replied: “I don’t think any party has the right to choose a bench of their choice. But here’s the case that we request a full court on some constitutional legal questions.”
When asked to clarify, Zuberi said the judges, who were appointed before amendment of October 2024, should decide the case. This attitude was supported by the Lahore High Court Bar Association’s Hamid Khan and Balochistan High Court Bar Association’s Munir Malik.
The court currently has 24 judges in total.
The constitutional bench that hears the pleas is led by justice Aminuddin Khan and includes Judge Jamal Khan Mandokhail, Muhammad Ali Mazhar, Ayesha Malik, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhtar Afghan and Shahid Bilal Hassan.
In recent sessions, the judges have questioned whether the constitutional bench has the authority to issue orders to form a full court asked by the petitions.
The question of employment
The exchanges revealed tensions on how the amendment affected legal appointments.
Justice Mandokhail noted that Chief Justice Yahya Afridi was appointed under the new change. Without that, Justice Mansoor Ali Shah, senior Puisne judge, would have been Chief Justice under the former seniority-based system.
The 26th change replaced automatic order of seniority with selection from the three most senior Supreme Court judges. When asked if Chief Justice could sit on a reconstituted bench, Mr. Zuberi said it should be Chief Justice’s decision.
Justice Mandokhail then questioned whether eight judges who decided that the case would deviate from a full court and whether the current constitutional bench would be considered partial.
Mr. Zuberi emphasized that a full court represented “collective mind for all”, while justice Aminuddin Khan noted that all judges remain bound by the Constitution.
The 26th change discarded the principle of seniority to appoint Chief Justice and established criteria that chose from the judges of the three Supreme Court.
Read: Attorney’s Convention rejects 26. Amendments
Zuberi clarified that he had not described them as “recipients” of the legislation. Justice Mandokhail noted, “So you say eight judges who decide the case would be wrong. It will be the same thing, whether we are sitting or a full court sitting.”
“Do you think the eight judges will be partial after sitting on the constitutional bench right now?” He added where he questioned who would decide the case if the amendment, during which CB was formed, was challenged.
Zuberi emphasized that a full court represented “all collective minds for everyone”. Justice Aminuddin noted that the judges are obliged to act in accordance with the constitution.
The consultation has been postponed until 1 p.m. 11.30 tomorrow.
How many petitions have been submitted against the amendment?
Thirty-six petitions are filed by the High Court Bar Association, political parties, including Pakistan Tehreek-E-Insaf, civil society groups and former judges. They claim that the amendment transfers central legal powers to the executive branch, undermines legal independence and was adopted without proper debate or the required two -thirds approval under Article 239 of the Constitution.
The petrets are either seeking full cancellation of the amendment or reversing of specific changes in agreements and judicial composition composition.
Critics say the removal of Suo Motu Powers restricts access to justice. Supporters claim that it prevents legal overreaction.
The petitions, including the Balochistan High Court Bar Association, claimed that the same 16-member bench in place when the amendment was adopted should hear the case to maintain constitutional legitimacy.
Senior Attorney Munir A Malik maintained that a full court is part of the Supreme Court and can be composed of the current bench, including judge appointed after amendment. Previous calls from Justice’s Mansoor Ali Shah and Munib Akhtar for a full court were rejected by CJP Yahya Afridi to avoid postponing internal considerations.
Justices questioned the legal basis for reconstituting a full court, emphasizing that the Supreme Court’s jurisdiction remains intact and that all judges are bound by the amendment until it is turned down. Attorney Abid Zuberi noted that a full court could be formed without all judges under the Committee for Practice and Procedure.
Previously, the Supreme Court approved live streaming of the procedure with an eight-member constitutional bench led by justice Amin-out-Din Khan, who gave the request. The petitions, including Mustafa Nawaz Khokhar and former CJP Jawad S. Khawaja’s lawyer, argued that only a bench before Amendment could decide the legality of change.
Read more: SC is considering the formation of full court in the middle of 26. Constitutional change challenge
Observers note that exclusive senior judges from the current bench can affect legitimacy. Khokhar described the case as an important to the judiciary to “repeat his independence or completely submit to those who are traditionally hostile to it.”
Once live streaming is approved, attention is now turning to whether CB will order a full court to consider the change in full public view.
