‘Can judges decide fate of law that elevated them?’
ISLAMABAD: A member of the eight-judge Constitutional Bench (CB) of the Supreme Court on Thursday wondered whether it would be pointless to hear challenges to the 26th Constitution Amendment if its members had to ignore Article 191A of the Constitution, under which the present bench was formed.
“We should recuse, resile and rise if we don’t have jurisdiction under Article 191A,” observed Justice Muhammad Ali Mazhar, adding that the bench must remain within the confines of the provision under which it was constituted.
The observation came when Justice Ayesha A. Malik, while supporting the formation of a full court, asked whether a constitutional amendment could be relied upon to determine its own validity.
She remarked that for the exercise of judicial power, the court did not have to depend on Article 191A to issue directives for the formation of a full court, questioning whether judicial powers could be curtailed by invoking Article 191A.
Munir A. Malik says only ‘pre-26th Amendment judges’ should sit on full bench
“If this is a bench of the Supreme Court, then what harm is there if the CB decides the validity of the CB itself?” Justice Jamal Khan Mandokhail posited in response.
Headed by Justice Aminuddin Khan, the eight-judge CB was hearing a set of 36 petitions challenging the vires of the 26th Amendment.
Senior counsel Munir A. Malik opened his arguments by seeking a judicial order for constituting a full court comprising all pre-26th Amendment judges of the apex court.
He argued that Article 191A does not strip the SC of its inherent jurisdiction, nor does it bar the court from hearing constitutional cases. He maintained that the SC is the only repository of judicial powers and has the authority to decide whether it possesses jurisdiction in constitutional matters.
Justice Mandokhail, however, asked how judges elevated after the amendment could be excluded from the CB when they too were SC judges.
The counsel responded that the fundamental principle of jurisprudence is that no one should be a judge in their own cause and that justice should not only be done, but must also appear to have been done.
“This would mean that not only the present eight judges, but also those elevated after the 26th Amendment should not sit on the bench,” observed Justice Mazhar.
“You judges were not appointed by any executive-dominated Judicial Commission of Pakistan (JCP),” the counsel replied, adding that the appointments of those elevated after the amendment were under question.
Justice Aminuddin wondered about the role of those judges, saying that when they were elevated after the amendment, they had little choice but to accept since they were serving as chief justices of their respective high courts. Once the JCP decided their elevation, he said, they were bound to comply.
“It would have been better if these fine judges had come to the Supreme Court through the process in vogue before the 26th Amendment,” the counsel responded. “The issue here is not their choice but the effect of their participation in hearing this case.”
He further asked what would happen if the challenges to the amendment prevailed and the JCP’s decision was struck down. “Will we then invoke the old doctrine of necessity, the doctrine of past and closed transactions, or the de facto doctrine? Why not tread the constitutional path?” he asked.
The counsel said that once the bench decided on the question of a full court, it would then be up to each judge to decide, according to their conscience, whether to recuse or not.
“Will the chief justice nominated under the 26th Amendment head that bench?” Justice Mandokhail asked.
“How can a judgement involving the personal interest of anyone be an outstanding one? Will it command legitimacy in the public eye?” the counsel questioned.
At this, Justice Mandokhail asked the counsel to spell out what specific interest the judges hearing the case might have.
The counsel responded that if the challenge to the 26th Amendment succeeded, judges appointed after the amendment would revert to their respective high courts, as had happened in the 2009 Sindh High Court Bar Association case.
But Justice Mandokhail pointed out that the 2009 case involved judges who had taken oath under the Provisional Constitution Order (PCO), and asked under what law a constitutional judge had ever reverted to a high court.
“Don’t consider the 26th Amendment any different from the PCO,” the counsel retorted.
Justice Khan asked the counsel to explain what benefits the CB judges were allegedly enjoying, reminding him that judges had faced all kinds of criticism, which was irrelevant, as fear or favour were not part of their oath.
“I am confident that the judges appointed after the 26th Amendment also care about the supremacy of this institution and its public image,” the counsel responded.
“It means you have no trust in this bench,” Justice Mandokhail remarked.
The counsel replied that the real issue was ensuring that any judgement of the court commanded legitimacy and wide public acceptance, adding that “today, we are standing at a crossroads”.
Justice Mandokhail said all 24 judges of the present SC — intentionally or unintentionally — had accepted the 26th Amendment.
He said the senior judges, including the chief justice, had repeatedly suggested during JCP meetings that all judges be included in the CB.
“That is why we are asking the CB to issue a judicial order declaring that all judges are constitutional judges and members of the CB,” the counsel said, adding that if the CB held that all pre-26th Amendment judges should sit in a full court, it will be fine with him.
Published in Dawn, October 10th, 2025