Among the many constitutional experiments bequeathed by the Twenty-Sixth Amendment to the Constitution of Pakistan, none dazzles the imagination quite like the creation of the Constitutional Bench. At its helm stands a jurist of such transcendent brilliance that his judgments on constitutional interpretation drift through the air like sacred whispers, heard by none and seen by few. They hover at the trembling edge of reason like ghosts of truth too radiant to survive the light. Perhaps, when the dust of centuries has settled, in some distant year, say 2180, only Indiana Jones, armed with torch and map, might dare descend into the forgotten catacombs of legal and political history to unearth them.
To date, the Constitutional Bench has bestowed upon the nation three judgments so shrouded in controversy that they seem less like instruments of justice and more like mediations from a soul burdened by its own contradictions. Each ruling has carved its own scar upon the Constitution, a slow erosion of the people’s fundamental rights and the undoing of the nation’s constitutional fabric. The Bench’s recent performance has not merely stirred debate; it has awakened a collective unease. In one stroke, it validated the trial of civilians by military courts a verdict that wounds the very soul of the right to a fair trial. In another, it redistributed PTI’s reserved seats to those already seated upon the throne, mocking the essence of democratic representation. And finally, in a gesture both audacious and unsettling, it anointed Justice Sarfraz Dogar as Chief Justice of the Islamabad High Court, brushing aside the sacred principle of judicial seniority.
Now, the Constitutional Bench has finally, after considerable delay, begun hearing petitions challenging the infamous Twenty-Sixth Amendment. The moment is momentous, for the issue before the Court is nothing less than the legality of its own creation. The question that now arises is simple yet profound: should the Constitutional Bench itself hear these petitions, or should they be placed before the Full Court of the Supreme Court?
In view of the jurisprudence settled by the Supreme Court over the past six decades, the Constitutional Bench cannot lawfully examine the constitutionality of Article 191-A (its creator). Only the Full Court of the Supreme Court, sitting in its plenary composition, is competent to decide this question. Chief Justice Ajmal Mian made this abundantly clear in Pir Sabir Shah v. Federation of Pakistan (PLD 1995 SC 66), observing: “There is a distinction between a provision of a statute which creates a special tribunal and a provision of such a statute which specifies disputes or matters over which such a special tribunal will have jurisdiction. The special tribunal so created cannot decide that the provision under which it has been created is ultra vires the Constitution or that its own appointment or constitution is defective or invalid.”
To decline jurisdiction of the Full Court in such circumstances would amount to an abdication of the Court’s constitutional duty
The above principle was first articulated by the Supreme Court under Chief Justice Manzoor Qadir in Akhtar Ali v. Altaf Rehman (PLD 1963 SC 486), wherein it was held that a creature of the Constitution cannot determine the validity of its own creation. A similar view was affirmed in Fazlul Quader Chaudhry’s case (PLD 1963 SC 486) and Mehr Dad’s case (PLD 1974 SC 193). The jurisprudence developed by Pakistan’s apex court thus makes it crystal clear that a creation of legislation cannot examine or determine the legality of the legislation that brought it into existence.
This jurisprudential doctrine finds its roots in one of the oldest maxims of natural justice, nemo judex in causa sua, no one should be a judge in their own cause. The Constitutional Bench is itself a product of the very amendment under challenge. In this sense, it is a direct beneficiary of this Amendment. To entrust it with adjudicating the validity of its own source is to invite an inherent conflict of interest, striking at the heart of impartiality and fairness. Can justice be expected when the judge himself stands as a beneficiary of the law under challenge? The answer, in both law and logic, is an emphatic no.
It must also be emphasised that the Constitution, under Article 184(3), vests in the Supreme Court the solemn duty to enforce fundamental rights in matters of public importance. This jurisdiction remains intact. Beyond the text lies an unspoken constitutional covenant—the Supreme Court's duty to preserve, protect, and defend the constitutional order. This duty emanates not merely from Article 184(3), but from the very oath each judge swears under Article 178. Thus, judicial review over constitutional amendments is not an ancillary function; it is an institutional imperative.
The Supreme Court of Pakistan has consistently maintained that constitutional amendments are subject to judicial review under Article 184(3) when they impinge upon the Constitution’s basic structure or the fundamental rights it guarantees. In Rawalpindi District Bar Association v. Federation of Pakistan (PLD 2015 SC 401), it reaffirmed that Parliament’s power to amend the Constitution is circumscribed by implied limitations, particularly where such amendments threaten democracy, the rule of law, judicial independence or the basic structure of the Constitution. To decline jurisdiction of the Full Court in such circumstances would amount to an abdication of the Court’s constitutional duty.
The creation of a Constitutional Bench does not confer upon a fragment of the Court the sovereign authority to review the instrument of its own birth
Similarly, the Supreme Court of India, in Minerva Mills v. Union of India (AIR 1980 SC 1789), struck down a constitutional amendment that sought to curtail judicial review, reaffirming that Parliament cannot use its amending power to destroy the Constitution itself. Comparative jurisprudence reinforces this principle. The German Federal Constitutional Court, the Brazilian Supremo Tribunal Federal, and the Czech Constitutional Court have all invalidated constitutional amendments inconsistent with fundamental principles. Courts in India, Bangladesh, Kenya, Colombia, Peru, and Taiwan have likewise upheld the doctrine that the constituent power is not absolute; no legislature, however mighty, may extinguish the essential structure of the Constitution.
Our own judicial history bears testament to the enduring principle that the Full Court must hear challenges to constitutional amendments. In every such precedent, the petitions were entrusted to the Supreme Court sitting in its collective authority. This consistent judicial practice reflects a deeper institutional wisdom that certain questions, by their very nature, transcend the ordinary bounds of adjudication and touch the soul of the Constitution itself. Such matters demand not the judgment of a few but the conscience of the Court in its entirety. Moreover, when a matter involves the constitutionality of structural provisions or the limits of parliamentary power, the term “Supreme Court” in Article 184(3) must necessarily be understood to denote the Full Court. This view is consistent with State v. Zia-ur-Rehman (PLD 1974 SC 49), which held that a court must determine its own jurisdiction when that jurisdiction is in dispute. The Full Court, therefore, is the only appropriate forum to determine whether the Constitutional Bench was lawfully constituted.
It must also be borne in mind that the distinction between a bench of the Supreme Court and the Full Court is an internationally recognised judicial practice. Across common law jurisdictions, constitutional questions of exceptional gravity are entrusted to the Court in its plenary form. In the United Kingdom, cases of constitutional import are heard by the full panel of the Supreme Court; in the United States, the Supreme Court sits en banc when questions touch upon the structure or legitimacy of governmental power.
The convening of a Full Court is an inherent power of the Supreme Court, and the Twenty-Sixth Amendment cannot be construed as having curtailed that power. Inherent powers flow not from conferment but from existence itself. The introduction of Article 191A, which provides for the formation of Constitutional Benches, does not divest the Supreme Court of its inherent authority. At most, it reorganises the internal structure of the Court without diminishing its overarching power. The authority to constitute a Full Court, therefore, is an incident of this inherent judicial power, one that ensures the Court’s independence, completeness, and institutional integrity.
The challenge to the Twenty-Sixth Amendment must, therefore, be heard by the Full Court of the Supreme Court. The creation of a Constitutional Bench does not confer upon a fragment of the Court the sovereign authority to review the instrument of its own birth. The challenge is no ordinary case; it is an institutional moment that demands that the Supreme Court rise as the ultimate guardian of the Constitution.