Who will rule the Supreme Court roost? Observers are expressing concerns that ambiguities in the text of the 26th Constitutional Amendment could lead to increased litigation, particularly regarding the authority dynamics within Pakistan’s Supreme Court. A significant question arising from this amendment is whether the Chief Justice of Pakistan (CJP) or the presiding judge of the newly established constitutional bench holds greater power.
Legal practitioners and jurists agree that the Constitutional Package has effectively created a parallel judicial system within the apex court, potentially complicating its operations. Advocate Syed Ahmad Hassan Shah characterized the constitutional bench as a “can of worms,” predicting it will face initial challenges since it replaces the previous three-judge committee established under the Supreme Court (Practice and Procedure) Act 2023.
A senior counsel, who chose to remain anonymous, expressed concerns over the package’s contradictory nature, suggesting it could lead to more confusion and litigation rather than providing clarity. For instance, questions arise about jurisdiction: who will adjudicate tax matters—the Supreme Court or the constitutional bench? If such a case raises constitutional issues, the constitutional bench might address both the law’s validity and the dispute, which could spark jurisdictional debates.
During recent Supreme Court proceedings, judges indicated that these concerns were far from theoretical. Justice Syed Mansoor Ali Shah questioned whether certain cases would be heard by the constitutional bench, noting that such uncertainties might recur in future hearings. Justice Ayesha Malik added, somewhat humorously, “Good luck to your constitutional benches,” reflecting the anxiety surrounding the new structure.
The amendment also allows for the CJP to serve as the presiding judge of the constitutional bench, a provision that may mitigate fears of creating parallel courts. However, the lack of clarity leaves many unsure about the implications. The CJP traditionally holds significant authority over the court’s administrative and financial matters, which raises further questions about the balance of power.
With the amendment allowing the formation of multiple constitutional benches, legal experts speculate about how this could affect case management and whether these benches would have secure tenures or be subject to frequent changes. The process for nominating the CJP now includes provisions for selecting a successor if the initial nominees decline, further complicating the landscape of judicial appointments.
As the implications of the 26th Amendment unfold, the legal community is left grappling with questions about authority, jurisdiction, and the potential for confusion within the judiciary.
