The Supreme Court on Thursday grappled with 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’ counsel argued that the current constitutional bench retains full judicial powers to issue such a direction, but the judges questioned if any constitutional or legal provision compels the court to form a full bench or defines its scope.
The apex court yesterday live-streamed proceedings of the previous hearing held on petitions challenging the 26th Constitutional Amendment, with arguments focusing on a plea to constitute a full court to hear the case. 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 in the past — including those on the 18th and 21st Amendments — were heard by full court benches, stressing that the present petitions, which directly concern judicial independence, merit similar treatment.
The bench, however, pressed the counsel to identify the specific constitutional or statutory basis for such a reconstitution, asking under which provision it could form a full court which laid out the basis for today’s hearing.
SC commences proceedings on 26th Amendment petitions
The Supreme Court on Tuesday allowed live streaming of the proceedings on petitions challenging the 26th Constitutional Amendment, marking a major step toward transparency in a case that has triggered one of the most consequential constitutional debates in recent years.
An eight-member Constitutional Bench (CB) led by Justice Amin-ud-Din Khan granted the petitioners’ request. The bench’s unanimous decision was welcomed by lawyers and civil society, who called it a vital move to ensure “public access” to judicial proceedings involving issues of fundamental importance.
Advocate Abdul Moiz Jaferii noted that live streaming in such cases had been recognised by the apex court as a public obligation. “It opens the doors of justice to everyone with an internet connection and allows access to the process of judicial decision-making. It should be the norm in every superior court,” he said.
In an earlier hearing, the bench took up a cluster of petitions against the 26th Amendment—legislation that restructured judicial powers, altered tenure norms, and sparked deep concern over the independence of the judiciary. The court indicated it would first address pleas seeking the formation of a full court before moving to procedural requests such as live streaming.
Tehreek-i-Tahaffuz Ayeen-i-Pakistan Chairperson Mustafa Nawaz Khokhar, represented by Advocate Shahid Jameel, pressed for the constitution of a full court, noting that “objections were raised on our petition regarding the formation of a full court.” Following deliberations, the bench ordered the petition to be formally registered.
Khawaja Ahmad Hosain, counsel 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 live streaming of the full court plea, stressing that the matter’s constitutional gravity demanded complete transparency.
Barrister Salahuddin argued that “every citizen 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’s representative said his side had “no personal objection to any judge on the bench.”
After hearing arguments, the court ruled in favour of live streaming the proceedings.
Read: SC to live stream hearings challenging 26th Constitutional Amendment
However, legal experts caution that the petitioners’ real challenge will be to persuade the CB to order the constitution of a full court to hear the matter, as several lawyers argue that a bench formed under the contested amendment cannot impartially decide its own validity.
Former senator Mustafa Nawaz Khokhar has already filed a petition seeking implementation of the Supreme Court (Practice and Procedure) Act Committee’s majority decision, which directed that petitions against the amendment be heard by a full court. The committee’s 2-1 majority ruling—issued on October 31, 2024—had ordered the SC Registrar to list the case for November 4, but it was never scheduled. The CB has now ordered that Khokhar’s petition be listed along with objections.
Khokhar termed the case one of the most consequential in Pakistan’s judicial history, saying the judiciary now faces a defining choice: to “reassert its independence or submit entirely to those traditionally hostile to it.”
Observers note that the exclusion of senior judges like Justices Syed Mansoor Ali Shah, Munib Akhtar, Athar Minallah, Shahid Waheed, and Malik Shahzad Ahmad Khan could undermine the bench’s legitimacy. They also question how a CB created under the 26th Amendment can adjudicate its own constitutionality.
Currently, the CB has 15 members, though previous challenges to constitutional amendments—such as the 18th and 21st—were heard by 17-member full courts.
Case History and Context
The 26th Constitutional Amendment Act, 2024, passed in October last year, brought sweeping changes to Pakistan’s judicial structure. It abolished the Supreme Court’s suo motu powers under Article 184(3), fixed a three-year term for the Chief Justice of Pakistan (CJP), and authorised the prime minister—through a parliamentary committee—to appoint the next CJP from among the three most senior judges.
The amendment also restructured the Judicial Commission of Pakistan (JCP), expanded parliamentary oversight in bench formation, and mandated the elimination of interest (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 challenge the amendment, calling it an assault on judicial independence.
They argue that it shifts control over key judicial functions—appointments, nominations, and bench compositions—towards the executive, upsetting the constitutional balance of power.
Petitioners also allege that the amendment was rushed through Parliament without meaningful debate or proper two-thirds approval under Article 239 of the Constitution. They urge the Supreme Court to strike it down entirely or, at minimum, annul clauses altering the CJP’s appointment mechanism and the JCP’s composition.
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 approach the court directly. Proponents, however, claim 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 declined, reasoning that a full court could expose internal judicial deliberations to unnecessary public scrutiny.
Petitioners continue to demand that the entire Supreme Court hear the matter, pointing to precedents like the 18th and 21st Amendment cases and the Supreme Court (Practice and Procedure) Act, 2023, where full benches were formed due to similar constitutional stakes.
With live streaming now approved, all eyes are on whether the CB will take the next crucial step—ordering a full court—to ensure that the judiciary’s own restructuring is debated by all its members in full public view.
