• Justice Mazhar says Article 191A bifurcated SC into two branches, cannot be ignored
• Lawyer seeks full court through judicial ruling or Oct 31 order of procedure committee
• SC notifies new code of conduct for judges

ISLAMABAD: The debate over whether a full court can be formed to hear challenges to the 26th Amendment continued on Thurs­day, with one of the judges of the Constitutional Bench (CB) saying that Article 191A, which pertains to the formation of the CB, could not be ignored in the case at hand.

During the hearing of the case by the eight-judge bench, Justice Muhammad Ali Mazhar said that the amendment had bifurcated the Supreme Court into regular and constitutional benches.

The birth of the Constitutional Bench is under Article 191A, but the counsels are asking the bench to ignore the provision and move forward to form the full court by whatever means, Justice Mazhar obser­ved. “When you say to ignore Article 191A under the ambit of which this CB is sitting, how can then you ask us to still sit under the purview of that very article?” he said.

“We are here under the mandate of Article 191A as the CB and if we ignore that, then it would mean this bench should be treated like any other regular bench,” Justice Mazhar said, adding that it would mean “recusal by us instead of rendering a decision to the challenges at hand”.

Senior counsel Uzair Karamat Bhandari, on behalf of the Sunni Ittehad Council, replied that the CB, at this stage, should not take a view of Article 191A. Whenever a jurisdiction of a court is taken away, it does not mean its jurisdiction to transfer the matter to another competent forum has also been taken away, he said.

Article 191A, the counsel explai­ned, certainly was on the statute book but whether constitutionally valid or not was another question which the CB needed to determine. Justice Ayesha A. Malik, however, observed that under Article 191A, the CB was exercising the jurisdiction of the Supreme Court, so the jurisdiction was still vested in the Supreme Court.

“If today we hold that CB cannot order for the full court, then the real difficulty will be that for all times to come, there will never be a full court; rather, the Judicial Commission of Pakistan (JCP) will determine how many judges will sit on the CB,” she added.

Justice Jamal Khan Mandokhail asked whether the full court should be formed on whim or whatever is dictated by the law.

Advocate Bhandari replied that the bench should always be formed in accordance with the law but despite Article 191A, the full court could still be convened. The decision of Oct 31, 2024, by the committee under the Practice and Proc­e­dure Act was a valid, binding, and existing decision, which asked for the fixation of challenges to the 26th Amendment before the full court.

Mr Bhandari argued that the committee’s decision must be implemented, which means that the full court as existed on Oct 31 should hear the matter. But in the alternative, if the bench felt that the decision cannot be enforced, the full court should be convened through a judicial order.

As to how many judges should sit on the full court, the counsel argued that if the CB was inclined to consider enforcement of the Oct 31 decision, then judges who were functioning at that time should be included in the larger bench since it was made by a valid body.

Since we are dealing with Article 184(3) petitions, the court should not be bogged down by any procedural technicality, the counsel argued, adding that any order passed by the CB could never be defied by anyone.

In the alternative, a full court consisting of all the existing 24 judges of the Supreme Court could be formed. There is no legal bar on those judges who were elevated as a result of the amendment, though it will remain embarrassing for them to be a part of the decision which concerns their appointment, the counsel said.

Justice Mazhar, however, asked the counsel to argue first on the point that the Oct 31 committee had the vested jurisdiction to pass an order to form the full court, adding that the binding effect of the committee has to be seen from the constitutional angle.

The counsel argued that convening the full court was not ousted by Article 191A on two bases: firstly, on logical and common sense grounds; secondly, on interpretative grounds.

Rules notified

Separately, the Supreme Court notified the new code of conduct for the superior court judges, saying this reflected its continued commitment to upholding the highest standards of judicial integrity, independence and accountability.

“The refinements reaffirm the judiciary’s unwavering resolve to ensure that justice is administered without fear, favour, or prejudice,” said a handout issued by the Supreme Court.

The rules were notified despite op­­­­­position by two senior judges, Syed Mansoor Ali Shah and Munib Akh­tar, who regretted that recent additions to the code of conduct were perilous because they could be weaponised against individual judges.

Published in Dawn, October 24th, 2025