Controversial 26th Constitutional Amendment: All 24 SC judges accepted it, says Justice Jamal

ISLAMABAD: In a striking courtroom admission, Supreme Court Justice Jamal Khan Mandokhail conceded on Thursday that all 24 judges of the country’s top court, whether “willingly or unwillingly,” have accepted the controversial 26th Constitutional Amendment.

An eight-member bench took up petitions filed by bar councils, ex-chief justice Jawad S Khawaja, the PTI, Jamat-e-Islami, Sunni Ittehad Council, and Tehreek-e-Tahaffuz Aain-e-Pakistan. The hearing was live-streamed on the Supreme Court’s official YouTube channel.

Munir A Malik, representing the Balochistan Bar Council and Balochistan High Court Bar Association, urged the bench to constitute a full court through a judicial order.

26th Amendment: SC CB head advocates adherence to Constitution

He argued that the judgment in the case must carry broad constitutional legitimacy and be free from any perceived conflict of interest.

Justice Mandokhail asked the counsel what interest the judges hearing the petitions held in the matter.

Justice Aminuddin, head of the Constitutional Bench, also questioned what benefit the judges had gained, noting they continued to receive the same salary and privileges as other judges despite being subjected to vituperative language.

Malik argued that other judges should also hear these petitions. In response, Justice Muhammad Ali Mazhar said, “If we pass an order that all the judges should sit then would it be acceptable to all the petitioners.”

Malik replied, “If that happens, I will withdraw my petition.” Justice Mazhar observed that the question of judges hearing the case should not arise, as they were appointed through the Judicial Commission established under the 26th Amendment.

Justice Aminuddin further questioned who would then be considered the chief justice, noting that the incumbent had also been appointed under the same amendment.

During the proceedings, Justice Musarrat Hilali questioned how the existing bench could determine its own jurisdiction, remarking that judges elevated after the 26th Constitutional Amendment should not be part of the bench.

Reacting to her remarks, Justice Mandokhail asked whether the new judges were brought from another country.

Justice Mazhar noted that the new judges promoted to the Supreme Court had nothing to do with the amendment, adding that the four new judges had served as chief justices of high courts.

Malik argued that if the petitions were accepted, judges elevated to the Supreme Court after the enactment of the 26th Amendment would have to revert to their original courts. Therefore, he contended, such judges should not hear the case.

Justice Mazhar asked whether Malik meant that the eight judges currently hearing the petitions, along with the eight elevated after the 26th Amendment, should be excluded, and only the remaining eight judges should hear and decide the case.

At the outset, Malik said he would adopt the arguments presented by Hamid Khan but wished to make additional points.

Justice Mandokhail responded that Hamid Khan had asked the bench to ignore constitutional provisions and asked Malik, “Do you also want us to ignore the constitutional provisions.”

The counsel for Balochistan Bar Council and Balochistan High Court Bar Association said he wanted the bench to set aside the constitutional provisions in order to constitute a full court.

Justice Mandokhail then questioned whether the bench was legally or constitutionally obliged to form a full court or if it was a matter of propriety.

The counsel argued that propriety demanded the formation of a full court, as this was important in the eyes of the public.

He further contended that Article 191A of the Constitution does not begin with a non-obstante clause, emphasizing that the Supreme Court en banc should be distinguished from a bench or benches of the Supreme Court.

Justice Mandokhail questioned whether the constitution defines a full court.

Malik submitted that Article 176, which establishes the Supreme Court as comprising the chief justice and a number of judges, implies that these petitions should be heard by a full court.

Justice Mandokhail asked whether all judges sitting to hear the case would constitute a bench or the Supreme Court. Malik replied, “It would be the Supreme Court en banc.”

Justice Ayesha then questioned if there was any bar to constituting a full court, adding that it holds inherent jurisdiction.

Justice Mazhar questioned whether the bench had jurisdiction under Article 191A to direct the Chief Justice or any committee to constitute a full court, adding, “If we have jurisdiction, it must be exercised within the limits of Article 191A.”

Malik argued that a judicial order from this bench to constitute a full court would be binding under Article 189, without needing directions to the Chief Justice or Registrar, as the Court has inherent jurisdiction to pass such an order.

Justice Mazhar cautioned that this could be a transgression of their jurisdiction and potentially violate Article 191A.

Justice Ayesha Malik called it a circular argument, noting petitioners rely on the amendment they challenge to justify their case.

She cited the Rawalpindi District Bar Association (RDBA) case, where the Court relied on the original constitution rather than a contested amendment.

Justice Mazhar added that the RDBA case involved a simple amendment with a sunset clause, unlike the current constitutional context where Article 191A exists.

He urged petitioners to find a way forward within the current constitutional framework.

Supporting Justice Mazhar, Justice Jamal asked whether any decision would be that of the Supreme Court or a Constitutional Bench. Malik referred to the Supreme Court judgment in the Zia-ur-Rehman case to support his argument.

The case was adjourned until Monday.

Copyright Business Recorder, 2025