ISLAMABAD: Justice Ayesha Malik on Wednesday remarked that there is no constitutional restriction stopping the Supreme Court’s full bench from hearing cases linked to the 26th Constitutional Amendment.
Her observation came during proceedings of an eight-member Constitutional Bench (CB) that is currently reviewing more than 30 petitions filed against the amendment, which was passed in October last year during a late-night parliamentary session.
The 26th Amendment has remained controversial since its passage. It curtailed the apex court’s suo motu powers, fixed the chief justice’s tenure at three years, and gave a parliamentary committee the authority to appoint the chief justice from among the three most senior judges. It also introduced the concept of constitutional benches in the Supreme Court and high courts — a move that has since been challenged by bar associations, political parties, and senior lawyers.
During Wednesday’s hearing, Advocate Khwaja Ahmad Hosain, representing veteran politician Afrasiab Khattak, argued that the matter should be referred to a full court to ensure transparency and public confidence. He stressed that the judiciary’s credibility was not tied to the amendment itself but to the independence of the bench hearing the case.
Justice Jamal Khan Mandokhail questioned whether the counsel distrusted the current bench, while Justice Syed Hasan Azhar Rizvi pointed out that Hosain’s petition specifically mentioned the term “original full court.” Hosain clarified that he was not questioning the independence of the current judges but believed that the full court should decide on Article 191A — the provision that created the CB.
Justice Ayesha Malik, however, noted that Article 191A was procedural in nature and did not impose a blanket restriction on the Supreme Court. “It simply says no other bench will exercise this jurisdiction, but it does not bar the full court from hearing such matters,” she observed.
Other judges, including Justice Mohammad Ali Mazhar, echoed the view that the amendment’s interpretation should not be read as limiting the Supreme Court’s authority. Hosain further argued that the CB had the power to refer the matter to the full court, insisting that the judges’ constitutional powers remained intact.
The hearing was adjourned until Thursday, with the bench expected to first decide whether the petitions should be heard by the full court or remain with the current CB before moving to the merits of the amendment itself.
Multiple bar associations and political groups have requested that the entire 26th Amendment be struck down, citing procedural flaws and concerns over judicial independence. In the alternative, they have urged the court to invalidate only those provisions that undermine the judiciary’s autonomy.
The case continues to be live-streamed on the Supreme Court’s official YouTube channel, reflecting the high public interest in the outcome.