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

ISLAMABAD: The Constitutional Bench of the Supreme Court questioned how it could bypass Article 191A of the Constitution to include additional judges on the bench hearing the petitions against the 26th Amendment.

Justice Musarat Hilali inquired how this bench could bypass Article 191A when it is hearing the constitutional matters, which is its specific jurisdiction. Justice Hilali noted that Article 191A of the Constitution has been enacted, but the petitioners ask the bench to go back to the pre-26th Amendment position.

Syed Shabbar Raza Rizvi, a former judge of the Lahore High Court, representing himself, responded that Article 191A should be heard with other articles of the constitution, adding that harmonious construction is required in this case.

26th Amendment case: Justice Amin asks whether only 16 judges could hear petitions

An eight-judge bench, headed by Justice Amin-ud-Din Khan, on Tuesday 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 Tehreek-i-Tahaffuz Ayeen-i-Pakistan, Mustafa Nawaz Khokhar, and different bar councils and associations.

Justice Muhammad Ali Mazhar said that, according to clause (3) of Article 191A, no bench of the Supreme Court other than the constitutional bench has jurisdiction to hear constitutional matters. Shabbar contended that through the 26th Amendment, the Supreme Court’s exclusive power of suo moto has been curtailed. He said like Article 175A, there is no non-obstante clause in Article 191A; therefore, it should be read with Article 176 for the constitution of the Full Court.

Shabbar further argued that there is no bar for the Full Court to hear this case. He stated that Article 187 of the Constitution is a helping hand, and it gives power to the Supreme Court to do complete justice.

Justice Mazhar said Article 187 has not ended with the introduction of Article 191A, adding that if the constitutional bench hears a case, then it can also use Article 187 to do complete justice. Justice Amin said the main question before this bench is how to include those judges, to whom the Judicial Commission of Pakistan (JCP) has not nominated for the constitutional bench.

Justice Musarat said if they allow other judges, who are not part of the constitutional bench, then there would be an objection to how those judges have been included when they are not members of the constitutional bench. “How can we bypass Article 191A and permit other judges to sit on this bench,” she asked.

Shabbar Raza then argued that the members of the constitutional bench are wearing two hats, one under Article 187 and the other under Article 191A.

Justice Mazhar responded that the regular and the constitutional bench are the two branches of one tree. “No one is saying that the constitutional bench is above the Supreme Court,” he added.

Justice Jamal Khan Mandokhail asked the counsel that this means to say that before 26th Amendment there was the Supreme Court and the benches and they had power to take suo moto. He further asked if all the judges would sit together then it would be the Supreme Court and could hear the petitions under Article 184(3)?

Shabbar said in India there is also a constitutional bench of the Supreme Court, but it is like other benches, and the Chief Justice India (CJI) constitutes the benches.

Justice Mazhar stated that in India also the constitutional matters don’t go to the regular benches, adding the CJI forms benches because he is Master of Roster there, while in Pakistan now the benches are constituted by the Committees, set up under the Supreme Court’s Practice and Procedure Act, 2023 and Article 191A of the constitution.

Justice Amin stated that for them the constitution is supreme and they have to act in accordance with the constitution. Shabbar Raza submitted that under Article 186 the President of Pakistan sends reference to the Supreme Court to seek its opinion on the constitutional issues.

Justice Mazhar remarked that the President sends reference to the Supreme Court through the Chief Justice of Pakistan, and now the CJP has to consider whether this matter should go to the regular or constitutional bench. He stated that as per Article 191A only the constitutional bench has jurisdiction to take up the reference.

Justice Amin asked the counsel that in the beginning of your arguments you stated that all 24 judges of the Supreme Court can hear this case, but now they have to see whether this bench has power to constitute the Full Court, and whether other judges could be included? He said if they include other judges then they would be entering into the ambit of JCP, as after 26th Amendment only the Commission can nominate judges for the constitutional bench (es).

Shabbar Raza asked the bench to keep aside Article 191A and hear the matter like a regular bench. He said when the Supreme Court hears this case then you all (present bench) would also be its members.

He asked the bench that, like the President (who sends the reference to CJP), refers this matter to the Chief Justice to constitute a Full Court.

Shabbar Raza and Dr Adnan Khan, counsel for Mohammad Anas have concluded their arguments, and Khawaja Ahmed Hosain will present his case during the hearing today (Wednesday).

Copyright Business Recorder, 2025