26th Amendment case: CB has power to pass order for formation of full court: counsel

ISLAMABAD: The counsel for former Chief Justice of Pakistan Jawad S Khawaja submitted before the Constitutional Bench (CB) that it has jurisdiction to pass an order as prayed for constituting a Full Court to hear the petitions filed against the 26th Amendment.

An eight-judge bench, headed by Justice Amin-ud-Din Khan, on Wednesday heard the petitions filed by former Chief Justice of Pakistan Jawad S Khawaja, the Pakistan Tehreek-e-Insaf, 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.

During the proceedings, Khawaja Ahmed Hosain, representing ex-CJP Jawad S Khawaja, argued that the terms ‘Full Court Bench’ and the ‘Full Court’ have been used in various judgments of the apex court. He said nothing is stopping the CB from referring this matter to the Chief Justice of Pakistan or the committee to constitute a Full Court.

26th Amendment bench: SC CB questions bypassing Article 191A to add judges

Justice Jamal Khan Mandokhail questioned which Full Court, whether pre or post 26th Amendment. He said, suppose if, through an amendment, the Supreme Court’s power is taken, then who would hear the petitions against that amendment? He himself replied that obviously the Supreme Court will hear them. The judge further said, “The apex court and high courts cannot be barred from hearing cases, which involve the constitutional issue, even if their powers are curtailed.”

Justice Shahid Bilal Hassan inquired from Hosain, “Do you admit the jurisdiction of the present bench?” He replied “yes”, but said the judges, who were in the Supreme Court before the 26th Amendment, should hear these petitions.

Justice Ayesha A Malik said that clause 1 of Article 191A and sub-clause (a) of clause 3, if read together, then there is no bar that this bench can’t pass an order for the constitution of the Full Court.

Hosain argued that there is rigour in Article 191A (3) (a) that the Supreme Court has jurisdiction to hear petitions filed under Article 184 (3) of the Constitution. He said the bench has been asking to show a path for constituting the Full Court as it has a concern.

Justice Ayesha questioned whether this bench can order for the Full Court, and who would be its members? She remarked on what bars this bench to pass an order to constitute the Full Court?

Hosain said that the present bench has the power to pass such an order, adding, “I am asking this for the sake of this institution. Don’t underestimate your power. If you pass this order, then all authorities, whether it is executive or judicial, are bound to comply with it,” he further said.

Hosain asked the bench not to rely on Article 191A, as it is about pending constitutional matters to be transferred to the regular benches. He argued that under Article 191A (3), the jurisdiction is vested in the Supreme Court, and for the hearing of constitutional matters, this power is exercised by the constitutional bench, which is the bench of the Supreme Court. “Don’t deny me the jurisdiction of the Supreme Court,” he requested the bench.

Earlier, the ex-CJP lawyer argued that why does he want the constitutional bench not to hear these petitions because it is the creation of the 26th Amendment, and if the Amendment is struck down, then it will have no significance.

He stated that currently there is no interpretation of Article 191A, adding that according to CJP’s (Yahya Afridi) letter, 13 judges out of the total strength of the Supreme Court had favoured that the petitions against the 26th Amendment should be heard by the constitutional bench.

Upon the completion of Hosain’s arguments, the court adjourned the hearing until today (Thursday), with Mustafa Nawaz Khokhar’s lawyer, Shahid Jamil, is set to argue before the bench.

Copyright Business Recorder, 2025