Senior lawyer Abid Shahid Zuberi on Tuesday told the Supreme Court’s (SC) Constitutional Bench (CB) that the chief justice of Pakistan (CJP) had the power to form a full court as it took up a set of petitions against the 26th Amendment.
The bench hearing the pleas is headed by Justice Aminuddin Khan and also includes Justices Mandokhail, Muhammad Ali Mazhar, Ayesha Malik, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhtar Afghan and Shahid Bilal Hassan.
Thus far, Zuberi, Lahore High Court Bar Association (LHCBA) lawyer Hamid Khan, Balochistan High Court Bar Association (BHCBA)’s counsel Munir A. Malik, and petitioner Barrister Salahuddin Ahmed have presented their arguments. They have sought the formation of a 16-member full court as per the number of judges present in the SC in Oct 2024, when the Amendment was passed.
Judges have questioned whether the CB has the power to issue orders for the constitution of a full court, as requested by petitioners.
The bench will first determine whether the challenges should be heard by a full court comprising all available SC judges or by the same eight-judge CB, before deciding on the legality of the 26th Amendment.
“Do not say a full court; say ‘those judges who were present from before the Amendment’,” Justice Mandokhail said. Zuberi referred to the case upholding Practice and Procedure Act 2023 and contended that the current eight-member bench would not give the petitioners the right to appeal.
“The number of judges nominated as part of the Constitutional Bench is 15, whereas at least nine more judges are needed for hearing an appeal,” Zuberi said.
Here, Justice Ayesha observed that it was now the Judicial Commission of Pakistan’s prerogative whether to give someone the right to appeal or not. She said the JCP could “give the right to appeal by nominating additional judges, [but] if it did not wish so, then the right to appeal can also be taken away”.
“This is simply a matter of the judiciary’s independence,” she remarked. Justice Mandokhail then pointed out that even a 16-member bench, as sought by Zuberi, would not have the right to appeal. Zuberi said the SC had declared that the right to appeal was not mandatory for “decisions based on collective knowledge”.
Justice Mandokhail questioned how Article 191A, under which the constitutional benches were formed in the SC, could be ignored, as it was a part of the Constitution.
Justice Ayesha noted that there were past verdicts present on “how the challenged provisions are kept aside”, at which Justice Mandokhail said to let Zuberi answer the question.
Zuberi contended that the full court was not a bench. “Your judgment is also present on how full courts have been constituted until now.” Justice Mandokhail replied that the SC Rules 2025 should have mentioned the procedure for a full court.
The hearing also witnessed a disagreement between Justice Mandokhail and Justice Ayesha over the procedure for adopting the SC Rules 2025. Later, the hearing was then adjourned till 11:30am today.