Debate Over Full Court Formation: Former CJ Jawwad S. Khawaja’s Counsel Argues 26th Amendment Does Not Impede Constitutional Bench Authority
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During the Supreme Court’s latest hearing on the 26th Amendment, lawyer Khawaja Ahmed, representing former Chief Justice Jawwad S. Khawaja, argued that the amendment does not restrict the formation of a full court. The discussion sparked significant judicial debate on constitutional powers and procedural authority within Pakistan’s apex court.
Introduction: A Crucial Hearing in Pakistan’s Judicial Landscape
The Supreme Court of Pakistan witnessed yet another pivotal session in its ongoing deliberations concerning the 26th Constitutional Amendment. Representing former Chief Justice Jawwad S. Khawaja, senior counsel Khawaja Ahmed presented his legal arguments before the Constitutional Bench, emphasizing that nothing within the 26th Amendment prohibits the formation of a full court to review constitutional matters.
This hearing has drawn national attention, as it not only explores the procedural validity of the amendment but also the broader question of judicial autonomy — particularly whether the Supreme Court retains unrestricted authority to determine the structure and composition of its benches.
The Core Argument: The 26th Amendment and Judicial Independence
Khawaja Ahmed’s Perspective
Opening his arguments, Khawaja Ahmed contended that the 26th Amendment does not curtail the Supreme Court’s power to convene a full court bench. He maintained that the Constitution continues to uphold judicial independence, empowering the apex court to structure itself in whatever manner ensures fair adjudication.
He further clarified that his stance does not require the participation of all 24 sitting judges, but rather that the court should exercise discretion to determine what constitutes a “full court” in each specific case.
Justice Amin-Ud-Din’s Observation
In response, Justice Amin-Ud-Din Khan remarked that many senior lawyers appearing before the bench had suggested setting aside the discussion of the 26th Amendment altogether. This remark highlighted the ongoing divergence of opinion among Pakistan’s legal fraternity regarding the proper scope of the case.
Khawaja Ahmed acknowledged this diversity of views, noting that disagreement among lawyers is as natural as differing opinions among judges. However, he insisted that the Constitutional Bench had full authority to issue directions for a full court formation if deemed necessary.
Justice Malik’s Key Question: Defining a “Full Court”
As the discussion unfolded, Justice Ayesha Malik posed a crucial question that shaped much of the debate:
“Should there be a full court, and if so, which one?”
This query addressed the heart of the matter — not only whether the Supreme Court could form a full court under the current constitutional framework but also how such a bench should be composed in practice.
Khawaja Ahmed reiterated that the Constitution grants the Supreme Court discretion in its internal procedures, and that no legislative amendment, including the 26th, can override this inherent authority.
Reference to the Raja Amir Case: Clarifying Judicial Precedent
The counsel also cited the Raja Amir case, in which Justice Mazhar Ali Akbar Naqvi had previously discussed the concept of a full court. Ahmed used this reference to argue that the formation of a full court is a judicial matter, not one dictated by legislative provisions.
He emphasized that the Constitutional Bench (CB) holds the power to direct such a formation when necessary to ensure transparency, inclusivity, and credibility in matters of national constitutional importance.
Judicial Reflections: The Bench Weighs Its Authority
Justice Jamal Khan Mandokhail interjected, noting that before issuing any directive, the Constitutional Bench must first determine whether it possesses the legal authority to order the creation of a full court.
This point brought the debate to a constitutional crossroads:
Does the Supreme Court, acting through a smaller bench, have the jurisdiction to compel the formation of a full court, or must such decisions arise through administrative consensus among the judges?
Khawaja Ahmed maintained that the Supreme Court’s inherent powers remain intact, independent of any constitutional amendments or legislative interference.
Hypothetical Scenario: The 27th Amendment and Judicial Power
To illustrate his argument, the counsel presented a hypothetical scenario:
“What if a 27th Amendment were introduced, granting an executive officer the power to decide all matters of the Supreme Court?”
He then reasoned that in such an unconstitutional situation, the court would still hear the case and assert its authority, reinforcing that no amendment can strip the judiciary of its fundamental role.
Justice Mazhar Ali Akbar Naqvi responded affirmatively, clarifying that none of the judges had refused to hear the 26th Amendment on its merits. He emphasized that if the lawyer successfully proves that the amendment contradicts the basic structure of the Constitution, the bench will issue an appropriate ruling.
Legal Procedure and Constitutional Integrity
Examining the Legislative Process
Khawaja Ahmed also pointed out that in reviewing the 26th Amendment, the court must ensure that the constitutional procedure for passing amendments was properly followed.
If any deviation occurred — whether in legislative intent, voting process, or procedural compliance — it would warrant judicial scrutiny.
Preserving the Supreme Court’s Role
The lawyer underscored that the Supreme Court’s authority to interpret the Constitution remains untouched. Regardless of the content of any amendment, the court holds the final say in determining its constitutionality.
“Do Not Underestimate Your Powers,” Says Counsel
During an exchange with Justice Mazhar, Khawaja Ahmed was asked who should be directed to form the full court if the bench decided to do so. In response, he asserted confidently:
“Sir, do not underestimate your powers. You can issue a judicial order or direct any executive authority — they will be bound by your command.”
This statement highlighted the lawyer’s belief in the judiciary’s constitutional supremacy — that all executive and legislative bodies remain bound by lawful judicial orders.
The Court Adjourns for Further Arguments
After concluding his arguments, Khawaja Ahmed requested the court to consider the broader implications of the amendment, not only for the present case but for the future of judicial independence in Pakistan.
The bench then adjourned the hearing until Thursday, with lawyer Shahid Jamil, representing Mustafa Nawaz Khokhar, scheduled to present the next round of arguments.
The Bigger Picture: Why the 26th Amendment Debate Matters
The Amendment at the Center of Controversy
The 26th Constitutional Amendment has been a subject of ongoing debate in Pakistan’s legal and political circles. While some view it as a procedural refinement, others argue it indirectly affects the balance of powers between the judiciary and the legislature.
The amendment’s implications go beyond court composition — they touch the very philosophy of constitutional governance, particularly regarding judicial independence, separation of powers, and institutional checks and balances.
Judicial Autonomy vs. Legislative Oversight
The current proceedings encapsulate a recurring theme in Pakistan’s constitutional history:
How far can Parliament go in shaping the judiciary’s framework before it begins to erode the core principles of judicial autonomy?
For many observers, this case represents a litmus test for Pakistan’s judiciary — a chance to reaffirm its role as a guardian of constitutional integrity.
Expert Opinions: Legal Community Divided
Legal analysts across Pakistan are watching the case closely. Some believe that granting the judiciary discretion in its internal matters aligns with the spirit of the Constitution. Others caution that unchecked judicial authority might lead to institutional imbalance if not exercised prudently.
Prominent constitutional experts suggest that the final ruling could reshape the relationship between the Supreme Court and Parliament, setting a precedent for how future amendments will be interpreted and challenged.
Historical Context: Evolution of the “Full Court” Concept
Early Precedents
The notion of a full court in Pakistan’s judiciary dates back to early constitutional interpretations, where major constitutional or political disputes were heard by all sitting judges of the Supreme Court.
Shifts in Judicial Practice
Over time, however, the practice evolved. The Chief Justice began constituting smaller benches to handle most matters, reserving full court sessions for issues of national significance, such as constitutional amendments, presidential references, and judicial reforms.
This evolution has sparked debate over whether the Chief Justice’s administrative discretion or a collective judicial decision should determine when a full court is necessary.
Implications for the Supreme Court’s Future
If the current bench rules that the 26th Amendment does not limit the Supreme Court’s authority to form a full court, it could strengthen the judiciary’s institutional independence.
Conversely, if the court acknowledges any constraints implied by the amendment, it may invite further constitutional litigation and potentially prompt a 27th Amendment or legislative clarification in the near future.
Either outcome will profoundly influence how the judiciary functions — not just in this case, but in all future constitutional matters.
Pakistan’s Constitutional Journey: Balancing Powers
The ongoing 26th Amendment hearings are part of Pakistan’s broader struggle to maintain balance among the three pillars of governance — the legislature, the executive, and the judiciary.
While the Constitution defines their respective domains, interpretation often becomes the battleground where these institutions test their limits.
By asserting its right to form a full court independently, the Supreme Court signals its intent to uphold judicial sovereignty, ensuring that constitutional interpretation remains free from external influence.
Conclusion: Judicial Integrity and the Path Ahead
As Pakistan’s Supreme Court continues to hear arguments on the 26th Amendment, the nation watches closely. The outcome will not only clarify the scope of judicial powers but will also define how constitutional checks and balances operate in the years to come.
Former Chief Justice Jawwad S. Khawaja’s counsel, Khawaja Ahmed, has reignited the debate on judicial independence, reminding both the bench and the public that constitutional supremacy lies in upholding principles, not personalities.
The next hearing promises further insights as Shahid Jamil, representing Mustafa Nawaz Khokhar, presents his arguments before the Constitutional Bench. Whatever the verdict, this case will likely become a landmark in Pakistan’s constitutional history — one that shapes the boundaries of judicial and legislative authority for generations.
