• Counsel argues Article 239 violated in passage of tweaks; argues CB not sending matter to full court akin to ‘rewriting’ Article 191A
• Justice Mazhar says court will examine procedural matters once merits of case are discussed; will strike down amendment if convinced
• Justice Aminuddin says bench bound by what is written in Constitution; Justice Mandokhail explains CB offshoot of Supreme Court

ISLAMABAD: In a loud and clear message, a member of the eight-judge Constitutional Bench (CB), seized with the 26th Amendment case, on Wednesday observed that the federation will have to explain whether parliament followed procedural requirements during the passage of the impugned amendment.

But this stage will arrive once the bench starts discussing the merits of the case, said Justice Muhammad Ali Mazhar in resp­onse to the arguments of senior counsel Khwaja Ahmad Hosain, who claimed parliament members did not freely exercise their right to vote. Mr Hosain, on behalf of veteran politician Afrasiab Khattak, highlighted that two-thirds majority of parliament did not freely exercise the right to vote in favour of the 26th Amendment.

This aspect needed to be looked at and, if the court ultimately agreed that procedures were not followed, it would mean the amendment had never come into force validly and therefore this CB’s formation was never valid, he argued.

At present, the question is who will hear the case — the full court or the CB, said Justice Mazhar, adding that the federation could be asked about the procedural requirement after this.

Justice Aminuddin Khan, who was heading the eight-judge bench, explained that this bench was bound by what was written in the Constitution.

The counsel argued that his submission that the matter should be heard by an appropriate forum was not an argument on the merits of the petition, explaining that his challenge to the amendment included a challenge to the implied limitation on the amending powers of parliament.

There are express limitations like Article 239, which outlines procedures for amending the Constitution, that have to be complied with while passing any amendment, he said, adding that the manner in which the 26th Ame­ndment was passed violated Article 239.

Justice Mazhar remi­nded that he had been asing for several days but the arguments of all lawyers were divergent since some said a full court comprising 15 judges should hear the matter, while others said that 24 judges should hear the case. But there are certain rigours in sub-clause (3) of Article 191A, which the CB cannot ignore, he observed.

The counsel, however, replied that the burden to decide this issue was on the CB. He said this would not be a correct constitutional position if the CB said its hands were tied and could not refer the case to the full court even if it wanted to. You will then be rewriting Article 191A by inserting a provision into it if you decide that CB can never refer a case to the full court, the counsel argued. “The provision carries no such language.”

You want to say that CB cannot send this case to a regular bench but to the full court, Justice Jamal Khan Mandokhail observed. The counsel answered in the affirmative.

Justice Mazhar again reminded that when the case is referred to the full court of 15 judges, then they will be hearing the matter as a regular bench since the other judges will not be members of the CB. This will be a mix and match of judges from the regular as well as the constitutional bench, Justice Mazhar observed.

The counsel then referred to Ziaur Rehman and Asma Jillani case, which held that judicial powers are always vested into the Supreme Court even where the language of the ouster was explicit. But in the matter at hand, there is no such explicit language, the counsel reminded.

CB’s jurisdiction is not being taken away, the counsel emphasised, adding that tomorrow if the 27th Amendment comes into force in which parliament decides to appoint an executive officer over the Supreme Court. Will this court not look into it, the counsel questioned, adding the court will have to examine the scope of such an amendment in exercise of its judicial powers.

This has never been the case that if somebody imposed an executive officer over the court and we cannot examine it, Justice Mazhar explained, adding the counsel can even start his arguments on the merits of the case and if we were convinced that the amendment was against the scheme of the Constitution – the only grounds for striking down the constitutional amendment – we could decide so.

Justice Shahid Bilal Hassan, however, asked the counsel if he was seeking main relief through this application for the full court with regard to the 26th Amendment. Should we shut our eyes and ears to give you the main relief, he wondered.

The counsel explained that his petition did not say to strike down the amendment; rather, it focuses upon placing the controversy in front of the full court. Where the vires of an instrument of creating a forum is under challenge, the counsel said, then that forum should not hear that matter.

At one point, Justice Mandokhail questioned if the jurisdiction of the entire Supreme Court was taken away through an amendment, who would then hear a challenge to such an amendment.

Will the same Supreme Court not hear the matter if its jurisdiction has been abridged, observed Justice Mandokhail, adding that constitutional courts, like the Supreme Court or the high court, always determine or review any question regarding their jurisdiction. This bench is an offshoot of the Supreme Court, Justice Mandokhail emphasised.

“I am saying that the pre-26th amendment original full court can hear such amendments,” the counsel said, adding the CB was a bench of the Supreme Court but the apex court also existed at the same time. He recalled that parliament did not amend Article 184(3) of the Constitution, which was the inherent powers of the Supreme Court.

So what I am requesting is that there is no bar to pass an appropriate order to preserve the credibility and moral authority of the process, he said, adding that an appropriate order will refer the matter to the full court. If sitting in the full court, one or more members still feel that only the could hear the matter then they will be free to make such a decision at that stage, he argued.

Published in Dawn, October 23rd, 2025