• Justice Muhammad Ali Mazhar points out no legal precedent exists for bench to hear challenges to very law that created it; says decision in this matter will become stare decisis
• Akram Sheikh proposes formation of full court comprising all SC judges

ISLAMABAD: As the eight-member Constitutional Bench debated who was qualified to hear challenges to the 26th Amendment, Justice Muhammad Ali Mazhar observed on Monday that the amendment — which led to the formation of the very bench he was sitting on — had given rise to a novel situation that was beyond the doctrine of stare decisis.

Stare decisis, literally meaning ‘let the decision stand’, is the doctrine that stipulates that courts should adhere to precedent in making their decisions.

The doctrine came up after Mohammad Akram Sheikh, one of the counsel arguing against the amendment, said that the incumbent CB members could not hear the case due to a conflict of interest.

He said there were full court judgements highlighting the principle of stare decisis, prohibiting a smaller bench of eight members from undoing or differing with precedents set by full courts, the counsel said.

Justice Mazhar, however, intervened to explain that it was not the question of stare decisis; rather, a new situation had emerged where a constitutional amendment was introduced and the CB was constituted under its Article 191A. “We have to live with it,” he said, adding anything decided under the purview of Article 191A would become stare decisis.

Will the lordship want me to disconnect with our rich heritage and court’s own precedents, the counsel retorted, adding that Article 191A required the sanction of the Supreme Court to become a valid law. “We are not going to dispute this,” Justice Mazhar observed.

During the hearing, Mr Sheikh also proposed a full court comprising all 24 judges, including those elevated to the top court after the 26th Amendment.

“Though there will be a conflict of interest then, I will leave it to the conscience of judges who were nominated after the 26th Amendment,” the counsel argued.

Let all 24 judges of the Supreme Court hear the matter but without adding any further judge to that strength, the counsel contended. “There should be no further court packing,” the counsel emphasised, adding this CB cannot hear the case at hand since they were sitting on a branch which was created by this very amendment.

Any person appointed or made part of a tribunal or court cannot sit in judgement of that very law, the counsel argued, adding this was a settled jurisprudence on which the entire world was unanimous.

Justice Jamal Khan Mandokhail asked if appointed, would these 24 judges be called the CB or the Supreme Court? The counsel replied that the Supreme Court should hear the matter since the members of CB were wearing two hats. One hat is that of the CB, which is disputed, as its members were appointed through the impugned amendment.

“This amendment has destroyed the total complexion of the Constitution and the organ of the state,” the counsel claimed, adding no military dictator had ever dealt with such a serious blow to the Constitution.

However, the other hat is not disputed and judges being repository of the trust — a sovereign attribute under the Objective Resolution – should be exercised for the benefit of the people of this country, the counsel argued.

“I pray that Allah Almighty bestow the courage upon the lordships to strike down this amendment and give the people their due right, the counsel contended.

At this, Justice Aminuddin Khan observed that when the counsel started to rely upon religious and poetic citations, then it meant he had no constitutional argument to advance. The counsel highlighted that the conflict of interest disqualifies the present members of CB from deciding challenges against the validity and vires of the amendment at hand.

Justice Khan asked the counsel to approach the proper forum like the office of the Chief Justice of Pakistan or the Committee under 191A if he thought this CB could not hear the matter. Unless decided otherwise, this amendment is binding upon all of us, Justice Khan observed.

Have you decided to abandon the role as judges of the Supreme Court, the counsel retorted.

At this, Justice Shahid Bilal Hassan asked what bench should decide the matter when according to the counsel the present eight judges or remaining judges, elevated by virtue of the amendment, should not hear the case.

The counsel replied that the Supreme Court was the forum for the resolution of the controversy whether the 26th Amendment was intra vires or ultra vires, adding that the CB even with 15 members will not have the constitutional authority to determine that controversy.

Is there any prohibition under Article 191A to refer the matter to the Supreme Court – a parent body – the counsel wondered, adding that the members of CB were also sitting here as judges of the apex court.

Speaking next, senior advocate Syed Shabbar Raza Rizvi contended that the members of CB were still the judges of the Supreme Court despite Article 191A.

Therefore, like any matter which any bench can refer to the Supreme Court to be placed before the full court, CB should also follow the same.

Published in Dawn, October 21st, 2025