By Asif Naveed
ISLAMABAD; Justice Muhammad Ali Mazhar on Monday observed that no Supreme Court benches other than the Constitutional Bench (CB) can hear constitutional matters. His remarks came as an eight-member bench continued hearing petitions challenging the 26th Amendment, which was passed in a controversial overnight parliamentary session in October last year.
The 26th Amendment, which changed the appointment and tenure of judges, removed the Supreme Court’s suo motu powers, fixed the chief justice’s term at three years, and created a special parliamentary committee for appointing the CJP from among the three most senior judges. It also led to the formation of the CB, which is now hearing challenges to the very legislation that created it.
The bench is headed by Justice Aminuddin Khan and includes Justices Mazhar, Jamal Khan Mandokhail, Ayesha Malik, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhtar Afghan and Shahid Bilal Hassan.
During the hearing, senior lawyer Muhammad Akram Sheikh — a founding member and former president of the Supreme Court Bar Association (SCBA) — presented his arguments, followed by retired Justice Syed Shabbar Raza Rizvi. The proceedings were adjourned until 11:30am Tuesday.
At the outset, Justice Mandokhail asked Sheikh if he represented other petitioners. Sheikh clarified he was representing only himself and sought permission to present his arguments. Justice Aminuddin questioned whether the CB could issue an order for the formation of a full court. Rizvi argued that the CB, even if formed under Article 191A, remained part of the Supreme Court and could refer the case to the CJP or the Practice and Procedure Committee.
Justice Mandokhail highlighted Clause 3 of Article 191A, stating no other bench besides the CB had jurisdiction over constitutional cases. Justice Mazhar agreed, remarking that “the Constitution is very clear that no bench other than the Constitutional Bench can hear constitutional matters.”
Petitioners, including bar associations and lawyers, have demanded a full 16-member bench — as existed in October 2024 when the amendment was passed — to hear the case. They argue the 26th Amendment was passed through procedural irregularities, with opposition parties alleging abductions and pressure tactics during voting.
The petitions seek to strike down the amendment entirely or, alternatively, remove specific provisions they say undermine judicial independence, such as new performance evaluations for judges, changes to Article 175A, and the mechanism for forming constitutional benches.
The proceedings have been livestreamed on the Supreme Court’s YouTube channel since October 8. The bench will first decide whether to hear the case through the current eight-judge CB or a full court, before ruling on the constitutionality of the 26th Amendment.
