The 26th Amendment, enacted in October 2024, has introduced significant changes to the structure and functioning of the Supreme Court of Pakistan, particularly concerning its jurisdiction and operational dynamics.
Article 191A has been inserted into the constitution, mandating the formation of constitutional benches within the SC. These benches, comprising judges nominated by the Judicial Commission of Pakistan, are tasked with handling cases involving constitutional interpretation and significant legal questions.
This specialisation aims to streamline the adjudication of complex constitutional matters. The recent amendment has also removed the SC’s authority to initiate cases on its own (the power of suo motu). Previously, the SC could proactively address issues of public importance without a formal petition. Now, the court can only act upon applications filed under its jurisdiction, limiting its ability to address matters unless formally brought before it.
The chief justice and the Supreme Court of Pakistan has now ceased the practice of fixing cases for hearing them independently, and this change comes following the implementation of the 26th Amendment and the Supreme Court (Practice and Procedure) Act, 2023, which introduces a new mechanism for the allocation of cases and now the jurisdiction of the chief justice is no longer what it was under the Supreme Court Rules, 1980..
The new framework for fixing cases is being handled solely by a committee established under the Practice and Procedure Act both for regular and constitutional matters. If the committee determines that a case falls under Clauses 3, 4, and 5 of Article 191A of the constitution, they have no choice but to refer it to the constitutional benches and then the other committee constituted under Article 191A would decide its date of fixation.
The constitutional bench consists of at least five judges, to be nominated by a committee made up of the presiding judge and the next two most senior judges from among the judges nominated under Clause 1. It will hear and decide such matters for the purposes of Clause 2 under Clause 4 of Article 191A of the constitution. Further, Clause 3 of Article 184 of the constitution restricts the SC from issuing an order or giving direction or making a declaration on its own or beyond the contents of any application filed under this clause.
Clause 3 of Article 191A of the constitution restricts all Supreme Court benches, other than constitutional benches, from exercising certain jurisdictions vested in the Court. These include the original jurisdiction under Article 184, the appellate jurisdiction under Clause 3 of Article 185, which pertains to cases where a judgment or order of a high court under Article 199 involves constitutional issues or substantial questions of law regarding constitutional interpretation, and the advisory jurisdiction under Article 186. The present case before the regular bench clearly falls within this category.
In accordance with Clause 5 of Article 191A, all petitions, appeals, or review applications against judgments or orders covered by Clause 2 of Article 191A that were pending or filed in the Supreme Court before the commencement of the 26th Amendment will now be transferred to the constitutional benches. Only benches established under this provision will have the authority to hear and decide these cases. This means that any pending cases involving constitutional or legal interpretation, including those mentioned in the previous paragraph, must be transferred to the constitutional benches for proper adjudication.
Therefore, the regular bench no longer holds jurisdiction over cases that require constitutional interpretation, as these matters fall exclusively under the purview of the constitutional benches. Only the benches established under Clause 5 of Article 191A will be able to hear and resolve cases involving the constitutionality of laws or substantial questions of law concerning constitutional interpretation. As such, the regular bench is legally prohibited from hearing or deciding such cases.
Clauses 3, 4, and 5 of Article 191A of the constitution preclude the regular bench from hearing cases that involve constitutional and legal interpretation, including matters within the original jurisdiction outlined in Article 184. Even the full court of the Supreme Court currently lacks the jurisdiction to entertain such cases, further limiting the scope of the regular bench’s authority under these clauses.
Following the 26th Amendment, no other bench of the Supreme Court possesses the legal jurisdiction to hear such cases, except for the constitutional bench, as constituted by the Judicial Commission. This bench is responsible for hearing and determining cases that fall under the restrictions set by clauses 3, 4, and 5 of Article 191A. Therefore, any attempt by a regular bench to take cognizance of, or pass judicial orders – including issuing contempt notices or demanding the fixation of such cases – would not only violate the clear provisions of the constitution, as amended, but also contravene the SC Practice and Procedure Act, 2023. Such actions would be outside the legal jurisdiction granted to the regular bench, rendering them invalid.
The writer is a practising advocate of the Supreme Court of Pakistan with 25 years of legal standing. He can be reached at: hafizahsaan47@gmail.com
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