Justice Aminuddin: “We are bound by what is written in the Constitution.”Justice Mandokhail: “Until all judges accept each other with open hearts, perhaps the matter will not move forward. Do not consider us your opponents — our duty is to defend, protect, and interpret the Constitution. It’s possible we may agree with the petitioners in our interpretation.” Remarks during the hearing on petitions against the 26th Constitutional Amendment
Islamabad ( Web News )
During the hearing of petitions filed against the 26th Constitutional Amendment, the head of the Supreme Court’s constitutional bench, Justice Aminuddin Khan, remarked that the Court is bound by what is written in the Constitution.
Justice Jamal Khan Mandokhail said that until all judges accept one another with open hearts, the matter may not progress. He added: “Do not consider us opponents; our role is to defend, protect, and interpret the Constitution. It is possible that, in our interpretation, we may agree with the petitioners. Accept us first — only then can we move forward. If this bench cannot hear these petitions, we will not issue any order and will step down. Can we issue directions on matters that fall outside our jurisdiction?”
Justice Muhammad Ali Mazhar observed that no one had refused to hear the case on merit. He stated: “If you argue on merit, we will listen and examine whether the amendment aligns with the basic structure and scheme of the Constitution. If you wish, you may begin your arguments on merit now. Convince us that this amendment violates the basic structure and scheme of the Constitution. On those grounds, a constitutional amendment may be declared invalid. But if we act beyond Article 191, this would become a regular bench, not a constitutional one. If 16 judges sit, that would be a full court, not a constitutional bench. How can we ignore Article 191-A-3? How can we convene a 16-member full court? We cannot direct the Judicial Commission, nor can we issue instructions — every lawyer is giving a different argument.”
Justice Ayesha A. Malik asked whether this bench could order the formation of a full court and whether any restriction exists against doing so. She noted that the case had come up for hearing after a long time, and jurisdiction can be challenged at any stage.
Justice Shahid Bilal Hassan said that the petitioners acknowledge the Court’s jurisdiction but are additionally asking that a 16-member full court hear the petitions. He added: “To grant the main relief sought, we would have to close our eyes and ears.”
The eight-member bench, headed by Justice Aminuddin Khan and comprising Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Ayesha A. Malik, Justice Syed Hasan Azhar Rizvi, Justice Musarrat Hilali, Justice Naeem Akhtar Afghan, and Justice Shahid Bilal Hassan, heard 37 petitions against the 26th Amendment on Wednesday.
The petitions were filed under Article 184(3) of the Constitution by the Chairman of Pakistan Tehreek-e-Insaf, Sunni Ittehad Council, Jamaat-e-Islami Chief Engineer Hafiz Naeem ur Rehman, Sardar Akhtar Jan Mengal, the Presidents of the Lahore High Court Bar Association, Lahore Bar Association, Balochistan Bar Council, Balochistan High Court Bar Association, Karachi Bar Association, Islamabad High Court Bar Association, and others. The hearing was broadcast live on the Supreme Court’s YouTube channel.
On Wednesday, Advocate Khawaja Ahmad Hussain, counsel for former senator Afrasiab Khattak, presented his arguments. Mustafa Nawaz Khokhar’s counsel, Shahid Jameel Khan, is scheduled to present his arguments today (Thursday).
Justice Aminuddin Khan asked Khawaja Ahmad Hussain what he meant by a full court. The lawyer responded that the only independent forum to hear these petitions is a 16-member full court consisting of judges appointed before the 26th Amendment.
Justice Mandokhail asked, “How can you say that 16 judges are independent and the rest are not? Do you not trust this bench?”
Justice Naeem Akhtar Afghan asked the lawyer to first read out his request.
Khawaja Ahmad Hussain replied that he was not asking the bench to give a final decision under Article 191; rather, that should be done by the original full court.
Justice Syed Hasan Azhar Rizvi pointed out that the petition mentioned a “full court,” not an “original full court.”
Justice Mandokhail added: “If you say this case should be placed before independent judges, then I will not sit on that bench — I cannot speak for my colleagues, but the lawyer must choose his words carefully.”
The lawyer said that the 16-member original full court has no vested interest in the 26th Amendment, but this current bench does.
Justice Aminuddin Khan asked: “What about the Chief Justice — what is your view regarding him?”
The lawyer replied: “The Chief Justice should sit on the bench.”
He further argued that there is no constitutional bar preventing the Court from ordering that the petitions be heard by a full court.
Justice Aminuddin Khan asked: “Why do you want this bench to issue such an order?”
Justice Mandokhail asked: “What is the definition of the Supreme Court? Read Article 176.”
The lawyer contended that newly appointed judges cannot validate their own appointments.
Justice Muhammad Ali Mazhar responded that judges appointed under the 26th Amendment were appointed due to a change in procedure, and that the Sindh High Court Bar case already provides them protection.
Justice Aminuddin Khan asked: “Why are you trying to shield the Chief Justice?”
Justice Shahid Bilal Hassan added: “This bench itself exists under the 26th Amendment — what do you say about that?”
The lawyer replied: “I’m not seeking any funding.”
Justice Mandokhail concluded by saying: “If this bench cannot hear the petitions, we will not issue any order and will step down. Can we issue directions on matters that fall outside our jurisdiction?”
The lawyer reiterated that he was only requesting the case be referred to the full court.
During Wednesday’s hearing on petitions challenging the 26th Constitutional Amendment, members of the Supreme Court’s Constitutional Bench exchanged detailed observations regarding the bench’s jurisdiction, the power to form a full court, and the constitutional limits defined under Articles 191 and 184 of the Constitution.
Justice Muhammad Ali Mazhar observed that if the court steps beyond the scope of Article 191, the current body would be considered a regular bench, not a constitutional bench.
Justice Ayesha Malik directed the counsel to read Article 191, while Justice Jamal Khan Mandokhail asked him to read Article 184(1), cautioning: “Do not curtail our jurisdiction.”
The counsel remarked that it was possible the federal government might support their plea, upon which Additional Attorney General Chaudhry Aamir Rehman, present in court, shook his head in disagreement.
Justice Ayesha Malik noted that the key question was whether this bench could order the formation of a full court, and if there was any constitutional restriction in doing so.
Counsel Khawaja Ahmad Hussain maintained that nothing prevents the bench from referring the matter to a full court.
Justice Mandokhail advised: “First, focus on whether we can refer the matter to the Chief Justice, the Committee, or the Full Court.”
Justice Musarrat Hilali pointed out that “the counsel is implying that we cannot hear this case.”
Justice Ayesha Malik clarified that the bench’s jurisdiction was not being challenged; rather, the plea was for the matter to be referred to a full court. “Is there any restriction on sending it to a full court?” she asked.
Justice Mandokhail further remarked that if the Judicial Commission nominated all judges to the constitutional bench and sub-benches were formed from among them, then a question arises: “Would that be called a full court? Would it be a constitutional bench or the Supreme Court itself?”
The counsel replied that Article 191-A(3) had no prior interpretation. He said that according to information available on the Supreme Court’s official website, the Chief Justice had written letters to 13 judges seeking their opinion—nine of whom opposed the formation of a full court and favored referring the case to a constitutional bench instead.
Justice Mandokhail remarked that “unless we accept all judges with open hearts, the matter may not progress. Do not consider us your opponents; our duty is to defend, protect, and interpret the Constitution. It’s possible we may agree with the petitioners’ interpretation.”
Justice Musarrat Hilali asked whether it would not have been better to directly petition the Chief Justice instead of coming before this bench.
Justice Ayesha Malik responded that “at that time, the committees had not yet been formed.”
The counsel contended that under the Practice and Procedure Act 2023, the majority of the committee members had decided that the matter should be placed before a full court, but that decision was not implemented.
He further argued that if the 26th Amendment were struck down, the newly appointed judges would have to return to the high courts.
Justice Mandokhail noted: “You must accept us first; only then can we proceed.”
The counsel then urged the bench to declare the 26th Amendment null and void.
Justice Mazhar remarked that “in one case, you are accepting the constitutional bench’s jurisdiction, and in another, you are not.”
Justice Ayesha Malik observed that the case had been fixed for hearing after a long time, and jurisdiction can be challenged at any stage.
Justice Shahid Bilal Hassan added that “we must overcome the hurdle of jurisdiction; initially, the petitioners themselves have accepted our jurisdiction.”
The counsel submitted that the bench, under Article 191-A(3), can hear cases related to Article 184(3), but insisted that “the case should be heard by a full court.”
Justice Shahid Bilal Hassan replied that “you acknowledge our jurisdiction but are additionally requesting that a 16-member full court hear the petitions.”
Justice Mazhar noted: “If there are 16 judges, it would be a regular full court, not a constitutional bench. How can we overlook Article 191-A(3)? How can we constitute a 16-member full court? We cannot direct the Judicial Commission or issue such orders — every lawyer has a different argument.”
The counsel maintained: “The decision rests with you; your hands are not tied. You have full judicial authority to refer the matter to a full court.”
Khawaja Ahmad Hussain further argued that “if tomorrow Parliament enacts a 27th Amendment saying that an executive officer will decide cases, will the Supreme Court not hear that case?”
Justice Mazhar responded that “no one has refused to hear the 26th Amendment case on its merits. If you present arguments on merit, we will listen and examine whether the amendment aligns with the basic structure and scheme of the Constitution. If you wish, you can start your arguments on merit now — convince us that this amendment violates the basic structure and foundational framework of the Constitution. On that basis, a constitutional amendment can be struck down.”
He added that questions such as whether proper procedure was followed and whether the amendment is valid would later be asked from the federal government and the attorney general, once the case proceeds on merits.
Justice Amin-ud-Din Khan said: “We are bound by what is written in the book of the Constitution.”
Justice Shahid Bilal Hassan remarked that “the petitioners are seeking their main relief concerning the 26th Amendment; to grant it, we would have to close our eyes and ears.”
Justice Mandokhail emphasized that “if an amendment is made to withdraw the Supreme Court’s powers, who will hear the case? The Supreme Court itself will. No other court or tribunal can. Similarly, if the jurisdiction of a High Court is taken away, that High Court would still hear the case. This bench is a branch of the Supreme Court itself.”
The counsel concluded that “for the sake of the institution’s credibility and independence, the matter should be referred to the full court. If the bench orders the formation of an original 16-member full court, it would be binding on all judicial and executive authorities. My request is that my plea not be rejected.”
After the completion of Khawaja Ahmad Hussain’s arguments, the bench adjourned the hearing until Thursday at 11:30 a.m., when advocate Shahid Jamil Khan will present his arguments.