26th Amendment case: Justice Amin asks whether only 16 judges could hear petitions
ISLAMABAD: Justice Amin-ud-Din Khan of the Supreme Court questioned whether only the 16 judges who were part of the Court before the 26th Amendment could hear the petitions challenging it, or if all 24 current judges are eligible to do so.
He was heading an eight-judge bench, which on Monday heard the petitions filed by former Chief Justice of Pakistan Jawad S Khawaja, the Pakistan Tehreek-e-Insaf, the Jamaat-e-Islami, the Sunni Ittehad Council, chairperson of the Tehreek-i-Tahaffuz Ayeen-i-Pakistan, Mustafa Nawaz Khokhar, and different bar councils and associations.
Senior counsel Akram Sheikh, representing himself, argued that all the 24 judges whether they were appointed after the 26th Amendment should be included in the bench, but there should be no court-packing.
Justice Amin questioned how the judges, who are not part of this bench, could be included in the constitutional bench. Justice Jamal Khan Mandokhail remarked that means to say that 24 judges hear the petitions, but it should be called the Supreme Court instead of the constitutional bench.
During the proceedings, Akram Sheikh argued that foreign direct investment in the country is vanishing, as there is a perception that “we don’t have an international standard of independent judiciary, as much as other countries do have.”
Akram Sheikh told the bench that he read in a magazine that 10 years ago Emir of the United Arab Emirate (UAE) asked Elon Musk to invest in his country. Elon asked him if there would be any issue then would he be able to approach the courts. To that the Emir gave no satisfactory answer, he added.
Upon this, Justice Mazhar said that was the concept of lacking of commercial courts, adding due to that no decision on arbitration and recovery issues is made quickly. However, now efforts are being made to resolve these issues without any delay.
Akram Sheikh contended that the 26th Amendment has destroyed the constitutional fabric and the mechanism. It has caused more damage than the amendments made during the tenure of the dictators.
Justice Mazhar observed that no Supreme Court benches besides the Constitutional Bench (CB) could hear constitutional matters.
Akram Sheikh argued that the Rule of ‘stare decisis’ is fully applicable to the present case. However, Justice Mazhar observed that discussion of larger bench could sustain and not ‘stare decisis’. He said there is a new situation, as the CBs are set up under Article 191A of the constitution. “You have to live with the new situation,” he remarked.
Justice Mazhar further said if anything had been decided under Article 191A then it would be ‘stare decisis’. He told the counsel that his arguments are beyond the doctrine of ‘stare decisis’. You are saying this bench, including those judges, appointed after 26th Amendment, can hear this case.
Akram Sheikh argued that the Constitutional Bench is not a separate court like the Federal Shariat Court. It is a “Bench” of the Supreme Court itself. The judges sitting on this Bench are members of the Supreme Court of Pakistan, as well as, members of the Constitutional Bench. They are, in a way, wearing two hats – one in their capacity as judges of the Supreme Court and the other in their capacity as members of the Constitutional Bench.
He further said that in their capacity as members of the Constitutional Bench, it is logically and legally impossible for the bench to effectively declare that the 26th amendment was void. An effective declaration can be issued only by a court of competent jurisdiction. If the 26th amendment is held to be void, then the very foundation on which the Bench has been raised will disappear.
Justice Shahid Bilal asked the counsel as according to you the constitutional bench cannot strike down 26th amendment; even other members of the CB are included in it. He then further asked him who could hear these petitions. Akram Sheikh submitted that he was not emphasising that these petitions be heard only by those judges who were not selected by the Judicial Commission of Pakistan. He stated that there is no prohibition in Article 191A that Supreme Court judges can’t hear this case.
He argued that in previous instances involving the constitutional validity of constitutional amendments and in landmark cases, the Supreme Court constituted a larger or full bench to adjudicate upon such grave constitutional questions. Given that the present matter also pertains to the validity of a constitutional amendment, namely the 26th Amendment, it is urged that, in the interest of justice this case should also be placed before a full bench of the Supreme Court.
After the conclusion of Akram Sheikh’s arguments, Shahbar Raza Rizvi presented his contention. He was still on his legs when the bench adjourned the case until today (Tuesday).
Copyright Business Recorder, 2025
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