ISLAMABAD: Justice Jamal Khan Mandokhail of the Supreme Court on Monday raised a critical question regarding whether judges who are considered beneficiaries of the 26th Constitutional Amendment should be sitting on the bench hearing petitions against it.
The remark came during proceedings of a high-profile case where multiple petitions are challenging the legality and constitutionality of the 26th Amendment. The amendment, passed in October 2024, significantly altered the structure of judicial authority — redefining the process for appointing the Chief Justice of Pakistan, limiting the court’s suo motu powers, and introducing Constitutional Benches (CBs) as a mandatory forum for hearing constitutional matters.
Judges Benefiting From Amendment?
The case is being heard by an eight-member Constitutional Bench led by Justice Aminuddin Khan. Other members include Justices Jamal Khan Mandokhail, Muhammad Ali Mazhar, Ayesha Malik, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhtar Afghan, and Shahid Bilal Hassan.
During the hearing, former Supreme Court Bar Association (SCBA) president Abid Shahid Zuberi repeated the demand that a full court — consisting of all eligible judges — should hear the matter. He argued that judges appointed after the 26th Amendment might have a conflict of interest and should not sit on the bench.
Justice Mandokhail responded with a pointed observation:
“The Chief Justice was appointed under the 26th Amendment. If the amendment had not been passed, Justice Yahya Afridi would have been the Chief Justice based on seniority. If we are its beneficiaries, can we sit on this bench and hear the case objectively?”
Bench Debates Validity of Its Own Jurisdiction
Justice Muhammad Ali Mazhar raised a counterpoint, asking who would hear the case if all sitting judges were considered potential beneficiaries.
Justice Ayesha Malik also added that Article 191-A of the Constitution allows for the formation of constitutional benches, but does not explicitly provide for a full court.
Zuberi insisted that the bench has the authority to issue a judicial order constituting a full court. However, Justice Musarrat Hilali questioned the legality of doing so when the very jurisdiction of the current bench is under challenge.
Justice Naeem Afghan offered a broader interpretation of Article 191-A, arguing that constitutional benches, as formed under the 26th Amendment, essentially serve the function of a full court for constitutional questions.
Petitioners Want Law Repealed
The petitions filed against the 26th Amendment argue that it compromises judicial independence by giving more control to the executive over key decisions within the judiciary, especially regarding the formation of benches and allocation of cases. Critics claim the changes are politically motivated and violate the separation of powers enshrined in the Constitution.
The petitioners have called on the Supreme Court to strike down the amendment, either entirely or in part, citing both procedural irregularities in how it was passed and its alleged inconsistency with constitutional principles.
The hearing was adjourned until Tuesday, with expectations that the question of judicial conflict of interest will dominate the coming sessions.
Background: What is the 26th Amendment?
The 26th Constitutional Amendment introduced significant reforms to how the judiciary operates in Pakistan. Some of the key features include:
-
Appointment of the Chief Justice: The amendment replaced the traditional seniority-based appointment with a structured nomination process.
-
Limitation of Suo Motu Powers: It placed curbs on the Supreme Court’s authority to take suo motu notice unilaterally.
-
Mandatory Constitutional Benches (CBs): It created dedicated benches to exclusively hear constitutional matters, thereby altering the internal structure of judicial case management.
While proponents argue that the amendment was necessary to ensure transparency and institutional balance, many in the legal fraternity believe it infringes upon judicial independence.
Why the Debate Matters
Justice Mandokhail’s question strikes at the heart of judicial ethics: Can a judge be considered impartial if the law in question directly affects their position or authority?
Legal analysts say the outcome of this case could set a precedent for how Pakistan’s judiciary interprets its role in constitutional amendments that affect its structure or powers. The issue of self-interest and perceived bias could potentially lead to a landmark ruling on judicial recusals and the limits of bench formation in politically sensitive cases.
The demand for a full court continues to be a focal point of contention, and whether the current eight-member CB will address this demand or refer the matter for wider judicial review remains to be seen.
Stay tuned as the proceedings resume Tuesday.
ISLAMABAD: Justice Jamal Khan Mandokhail of the Supreme Court on Monday raised a critical question regarding whether judges who are considered beneficiaries of the 26th Constitutional Amendment should be sitting on the bench hearing petitions against it.
The remark came during proceedings of a high-profile case where multiple petitions are challenging the legality and constitutionality of the 26th Amendment. The amendment, passed in October 2024, significantly altered the structure of judicial authority — redefining the process for appointing the Chief Justice of Pakistan, limiting the court’s suo motu powers, and introducing Constitutional Benches (CBs) as a mandatory forum for hearing constitutional matters.
Judges Benefiting From Amendment?
The case is being heard by an eight-member Constitutional Bench led by Justice Aminuddin Khan. Other members include Justices Jamal Khan Mandokhail, Muhammad Ali Mazhar, Ayesha Malik, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhtar Afghan, and Shahid Bilal Hassan.
During the hearing, former Supreme Court Bar Association (SCBA) president Abid Shahid Zuberi repeated the demand that a full court — consisting of all eligible judges — should hear the matter. He argued that judges appointed after the 26th Amendment might have a conflict of interest and should not sit on the bench.
Justice Mandokhail responded with a pointed observation:
“The Chief Justice was appointed under the 26th Amendment. If the amendment had not been passed, Justice Yahya Afridi would have been the Chief Justice based on seniority. If we are its beneficiaries, can we sit on this bench and hear the case objectively?”
Bench Debates Validity of Its Own Jurisdiction
Justice Muhammad Ali Mazhar raised a counterpoint, asking who would hear the case if all sitting judges were considered potential beneficiaries.
Justice Ayesha Malik also added that Article 191-A of the Constitution allows for the formation of constitutional benches, but does not explicitly provide for a full court.
Zuberi insisted that the bench has the authority to issue a judicial order constituting a full court. However, Justice Musarrat Hilali questioned the legality of doing so when the very jurisdiction of the current bench is under challenge.
Justice Naeem Afghan offered a broader interpretation of Article 191-A, arguing that constitutional benches, as formed under the 26th Amendment, essentially serve the function of a full court for constitutional questions.
Petitioners Want Law Repealed
The petitions filed against the 26th Amendment argue that it compromises judicial independence by giving more control to the executive over key decisions within the judiciary, especially regarding the formation of benches and allocation of cases. Critics claim the changes are politically motivated and violate the separation of powers enshrined in the Constitution.
The petitioners have called on the Supreme Court to strike down the amendment, either entirely or in part, citing both procedural irregularities in how it was passed and its alleged inconsistency with constitutional principles.
The hearing was adjourned until Tuesday, with expectations that the question of judicial conflict of interest will dominate the coming sessions.
What is the 26th Amendment?
The 26th Constitutional Amendment introduced significant reforms to how the judiciary operates in Pakistan. Some of the key features include:
-
Appointment of the Chief Justice: The amendment replaced the traditional seniority-based appointment with a structured nomination process.
-
Limitation of Suo Motu Powers: It placed curbs on the Supreme Court’s authority to take suo motu notice unilaterally.
-
Mandatory Constitutional Benches (CBs): It created dedicated benches to exclusively hear constitutional matters, thereby altering the internal structure of judicial case management.
While proponents argue that the amendment was necessary to ensure transparency and institutional balance, many in the legal fraternity believe it infringes upon judicial independence.
Justice Mandokhail’s question strikes at the heart of judicial ethics: Can a judge be considered impartial if the law in question directly affects their position or authority?
Legal analysts say the outcome of this case could set a precedent for how Pakistan’s judiciary interprets its role in constitutional amendments that affect its structure or powers. The issue of self-interest and perceived bias could potentially lead to a landmark ruling on judicial recusals and the limits of bench formation in politically sensitive cases.
The demand for a full court continues to be a focal point of contention, and whether the current eight-member CB will address this demand or refer the matter for wider judicial review remains to be seen.
Stay tuned as the proceedings resume Tuesday.
