26th Amendment fails to quell doubts

Express Tribune

14-05-2025

A general view of the Supreme Court of Pakistan building at the evening hours, in Islamabad, Pakistan April 7, 2022. PHOTO: REUTERS
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The constitution of benches in high-profile cases has remained a contentious issue in the Supreme Court since March 2009.
The term "like-minded bench" continues to carry weight even after the 26th Constitutional Amendment, which mandated that the nomination of judges for constitutional benches be approved by the Judicial Commission of Pakistan (JCP).
The executive retains considerable influence over the JCP's decision-making, both in the appointment of judges and in their selection for constitutional benches.
A section of the legal fraternity believes that judicial independence has been compromised due to how the JCP functions. Some senior apex court judges have been accused of facilitating the executive in its sway over JCP decisions.
It is a matter of record that the country's three major political parties — PTI, PML-N and PPP – have all been on the receiving end of judgments passed by so-called like-minded benches since 2009.
Before the 26th Amendment was enacted, chief justices were often accused of forming like-minded benches to secure favourable outcomes.
The term gained further currency during the tenure of former chief justice Mian Saqib Nisar, when judges perceived as hostile to the PML-N were consistently assigned to politically consequential cases – decisions that, in many ways, reshaped national politics.
Similar concerns were raised during the tenures of former CJPs Gulzar Ahmed and Umar Ata Bandial, with PML-N and PPP frequently questioning the composition of benches in sensitive cases.
To introduce transparency in bench formation, the Supreme Court (Practice and Procedure) Act 2023 was passed, establishing a three-member committee of senior judges, including the chief justice, to constitute benches.
Later, to further consolidate control over judicial appointments, the 26th Amendment was passed, granting the JCP the authority to select judges for constitutional benches, where the executive reportedly maintains significant sway.
Judges who are perceived as likely to pose tough questions have, in many cases, been sidelined from constitutional benches.
Despite the amendment having been in effect for over six months, no clear criteria have yet been formulated for nominating judges to these benches.
Currently, 15 judges from across the provinces have been nominated to constitutional benches.
However, several senior judges, considered not to be in the "good books" of the executive, have been left out, despite being among the most respected and competent members of the bench.
The current committee responsible for selecting judges for constitutional benches is led by Justice Aminuddin Khan and includes Justice Jamal Khan Mandokhail and Justice Muhammad Ali Mazhar.
This committee's conduct has also come under scrutiny for allegedly continuing the trend of forming like-minded benches in high-profile cases.
For instance, the committee did not nominate Justice Shahid Waheed to the bench hearing the military courts case.
Similarly, judges with expertise in tax matters were not included on the bench adjudicating the super tax case.
More recently, the committee has drawn criticism for excluding five judges from the bench hearing review petitions in the reserved seats case, which challenges the SC's July 12 decision.
Faisal Siddiqi, counsel for the Sunni Ittehad Council (SIC), has formally challenged the composition of this bench.
Even sitting judges—Justice Ayesha Malik and Justice Aqeel Ahmad Abbasi—have raised serious concerns about the composition of the larger bench hearing the review petitions.
During Tuesday's hearing, signs of a divided bench were visible.
Justice Aminuddin Khan appeared reluctant to grant time to SIC's counsel to submit an application contesting the bench's composition.
However, Justice Jamal Khan Mandokhail intervened, stressing that the counsel should be afforded a fair opportunity to raise objections.
Following this intervention, the bench decided to adjourn proceedings until Monday.
A growing perception has taken hold: while former CJPs were seen as forming like-minded benches, the current dynamic suggests that "government-aligned" benches are now being formed, with the tacit cooperation of certain judges.
Unless transparency is brought to the process of constituting benches, the legitimacy of the judiciary may increasingly come under question.