{"id":6713,"date":"2025-10-13T14:56:38","date_gmt":"2025-10-13T14:56:38","guid":{"rendered":"https:\/\/paksouch.com\/?p=6713"},"modified":"2025-10-13T14:56:39","modified_gmt":"2025-10-13T14:56:39","slug":"justice-mandokhail-wonders-whether-judges-can-hear-26th-amendment-case-if-they-are-its-beneficiaries","status":"publish","type":"post","link":"https:\/\/paksouch.com\/?p=6713","title":{"rendered":"Justice Mandokhail wonders whether judges can hear 26th Amendment case if they are its \u2018beneficiaries\u2019"},"content":{"rendered":"\n

Justice Jamal Khan Mandokhail on Monday wondered whether judges comprising the Supreme Court\u2019s (SC) Constitutional Bench (CB) hearing petitions<\/a> against the 26th Amendment<\/a> could do so if they were its \u201cbeneficiaries\u201d.<\/p>\n\n\n\n

The Amendment was passed<\/a> by the parliament<\/a> during an overnight session in October last year, with the PTI claiming seven of its lawmakers were abducted<\/a> to gain their favour as the party opposed the legislation. The Balochistan National Party-Mengal (BNP-M) also alleged its two senators<\/a> were being, with both later defying party line<\/a> to vote in the tweaks\u2019 favour.<\/p>\n\n\n\n

The legislation, which altered judicial authority and tenure, has been a lightning rod for debate<\/a> with both opposition parties and legal experts<\/a> questioning its impact on the judiciary\u2019s independence.<\/p>\n\n\n\n

The tweaks took away the SC\u2019s suo motu powers, set the chief justice of Pakistan\u2019s (CJP) term at three years and empowered a Special Parliamentary Committee<\/a> for the appointment of the CJP from among the three most senior SC judges. It also paved the way for the formation of the CB, which is now hearing petitions against the very legislation that enabled its establishment.<\/p>\n\n\n\n

Former Supreme Court Bar Association (SCBA) president Abid Shahid Zuberi<\/a> continued his arguments on the case today.<\/p>\n\n\n\n

The CB hearing the pleas is headed by Justice Aminuddin Khan and also includes Justices Mandokhail, Muhammad Ali Mazhar, Ayesha Malik, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhtar Afghan and Shahid Bilal Hassan.<\/p>\n\n\n\n

During recent hearings, judges have questioned whether the CB has the power to issue orders for the constitution of a full court, as requested by petitioners.<\/p>\n\n\n\n

So far, Lahore High Court Bar Association (LHCBA) lawyer Hamid Khan, Balochistan High Court Bar Association<\/a> (BHCBA)\u2019s counsel Munir A. Malik and petitioner Barrister Salahuddin Ahmed have presented their arguments. Hamid sought<\/a> the formation of a 16-member bench as per the number of judges present in the SC in Oct 2024. Malik contended<\/a> that the CB had the power to issue a judicial order for the formation of a \u201cfull court\u201d.<\/p>\n\n\n\n

On Saturday, a convention jointly hosted by the LHCBA and the Lahore Bar Association resolved<\/a> to continue its struggle against the 26th constitutional Amendment, declaring that the legal fraternity would not accept any judicial verdict that undermines the judiciary\u2019s independence.<\/p>\n\n\n\n

The bench will first determine<\/a> whether the challenges should be heard by a full court comprising all available SC judges or by the same eight-judge CB, before deciding on the legality of the 26th Amendment.<\/p>\n\n\n\n

The case was initially taken up in January<\/a>, and after the CB\u2019s approval<\/a> of petitioners\u2019 request for it, the proceedings are being live-streamed on the SC\u2019s YouTube channel since October 8.<\/p>\n\n\n\n

<\/a>The hearing<\/h2>\n\n\n\n

At the outset of the hearing, Justice Mandokhail questioned whether it was the right of any party to request a bench of its choice, to which Zuberi replied, \u201cI do not think that any party has the right to select a bench of their choice. But here the case is that we are requesting a full court on some constitutional legal issues.\u201d<\/p>\n\n\n\n

The ex-SCBA president added that he had \u201calways insisted that there should be a full court\u201d.<\/p>\n\n\n\n

Justice Mandokhail then asked why Zuberi wanted a full court, to which the latter said he would cite the former\u2019s past judgements in favour of the formation of a full court.<\/p>\n\n\n\n

Upon the judge asking how many judges were appointed in the apex court currently and what a full court would look like, Zuberi said there were a total of 24 judges. \u201cI am not declaring any judge wrong. All judges are honourable,\u201d he added.<\/p>\n\n\n\n

Justice Ayesha then enquired of the petitioner what his request was, to which Zuberi said that judges who had been appointed to the apex court before the 26th Amendment should hear the case. The LHCBA\u2019s counsel Hamid and BHCBA\u2019s lawyer Malik had also made the same request.<\/p>\n\n\n\n

Responding to a question by Justice Mandokhail on the reasoning behind his request, Zuberi argued that the 26th Amendment, under which the CB was formed<\/a>, \u201citself had been challenged\u201d.<\/p>\n\n\n\n

Justice Mandokhail then wondered whether the CJP, who was elevated<\/a> to his role after the passage of the contested amendment, would be part of the bench or not, at which Zuberi said that the chief justice himself should decide that.<\/p>\n\n\n\n

Justice Mandokhail noted: \u201cThe chief justice was appointed under the 26th Amendment. If the constitutional amendment had not been passed, Yahya Afridi would not have become the chief justice, as the timing was specified.<\/p>\n\n\n\n

\u201cMay Allah grant long life to the chief justice, the senior puisne judge (Justice Mansoor Ali Shah) was set to become the chief justice, but he could not.\u201d<\/p>\n\n\n\n

The 26th Amendment had discarded the seniority principle for the CJP\u2019s appointment and set the selection criteria for the role from the top three senior SC judges.<\/p>\n\n\n\n

Justice Mandokhail then wondered, \u201cIf we are the beneficiary [of the Amendment], then can we not be on the bench?\u201d Justice Mazhar asked who would hear the case then.<\/p>\n\n\n\n

Zuberi clarified that he had not termed them \u201cbeneficiaries\u201d of the legislation. Justice Mandokhail then remarked, \u201cSo you are saying that the eight judges deciding the case would be wrong. It will be the same thing whether we eight sit or a full court sits,\u201d the judge added.<\/p>\n\n\n\n

\u201cDo you think that the eight judges will become biased after sitting in the constitutional bench?\u201d he asked. \u201cWho would decide the case then if the amendment under which the Constitutional Bench has been formed is challenged?\u201d<\/p>\n\n\n\n

Zuberi highlighted that a full court meant the \u201ccollective minds of everyone\u201d. Justice Aminuddin remarked that the judges were to act as per the Constitution.<\/p>\n\n\n\n

At this point, Justice Ayesha observed that Article 191A<\/a> of the Constitution, under which the constitutional benches were formed in the SC, \u201cdoes not address the matter of a full court, but benches\u201d.<\/p>\n\n\n\n

Justice Mandokhail remarked that a full court could also be termed a bench, but Justice Ayesha noted otherwise.<\/p>\n\n\n\n

Questioning the CB\u2019s powers to form a full court, Justice Mazhar noted that the CB was nominated by the Judicial Commission of Pakistan (JCP) and asked whether the bench could include judges who were not selected by the JCP.<\/p>\n\n\n\n

Zuberi, echoing the arguments presented by LHCBA counsel Malik, replied, \u201cThe constitutional bench can issue a judicial order. [\u2026] Full court is not a bench.\u201d<\/p>\n\n\n\n

Justice Mandokhail said, \u201cHow can we pass a judicial order [for full court] if it is not our jurisdiction? We will say it clearly that we do not have the jurisdiction.\u201d<\/p>\n\n\n\n

However, Justice Ayesha asked, \u201cIs there a restriction on passing a judicial order?\u201d<\/p>\n\n\n\n

At one point during the hearing, Justice Mandokhail asked Zuberi if he wanted the full court matter to be sent to the senior puisne judge. The ex-SCBA president responded that the matter should first be forwarded to the CJP, and \u201cif the chief justice recuses from it, then it should be sent to the senior puisne judge\u201d.<\/p>\n\n\n\n

Justice Mazhar questioned how the matter would be sent to the CJP as he was \u201cnot the head of the roster\u201d.<\/p>\n\n\n\n

Zuberi argued: \u201cIf you do not have the power, then how were full courts formed till now?\u201d<\/p>\n\n\n\n

He contended that the chief justice could not refuse to constitute a full court after a judicial order for it.<\/p>\n\n\n\n

\u201cHow can we issue a judicial order if there are objections on the chief justice and the constitutional bench?\u201d remarked Justice Hilal. Justice Mandokhail also asked whether the CB could issue directives to the CJP to \u201cinclude specific judges in the bench and exclude certain judges\u201d.<\/p>\n\n\n\n

Zuberi reiterated that the CB had the authority to issue orders for the formation of a full court.<\/p>\n\n\n\n

Justice Aminuddin asked whether a CB could hear a regular case that was fixed for hearing before it, to which the lawyer replied that the case would be sent to a regular bench.<\/p>\n\n\n\n

\u201cYou are saying that the constitutional bench can hear the case but should not do so,\u201d Justice Mandokhail remarked. Zuberi emphasised that the case about the 26th Constitutional Amendment was an important one, adding that \u201can Amendment had never been challenged successfully\u201d.<\/p>\n\n\n\n

\u201cDo not pick and choose. Speak on the rules,\u201d said Justice Mandokhail.<\/p>\n\n\n\n

Explaining the difference between jurisdiction and judicial power, Zuberi said, \u201cAll the judges of the Supreme Court have the same judicial power. Jurisdiction is conferred under Article 175(2) \u2014 whether it is appellate, criminal or review.\u201d<\/p>\n\n\n\n

Referring to various Sections of the Constitution, Justice Ayesha observed that \u201cjurisdiction is not vested with a bench\u201d but in the court. \u201cIs there a bar under any of these provisions which prevents the constitution of a full court?\u201d she asked again.<\/p>\n\n\n\n

\u201cIf there is no bar, then the request for a full court is in line with the convention of this court and there have been numerous occasions when a full court has been asked,\u201d she said, recalling that a full court also took up<\/a> the petitions against the SC Practice and Procedure Act 2023<\/a>.Justice Ayesha Malik speaks as an eight-member SC Constitutional Bench hears challenges against the 26th Amendment during live-streamed proceedings, on Oct 13, 2025. \u2014 screengrab from SC\u2019s YouTube channel<\/p>\n\n\n\n

Justice Mandokhail remarked, \u201cOn the one hand, you are asking for a full court, but on the other hand, you are limiting it to 16 judges. Why not [all] the 24?\u201d<\/p>\n\n\n\n

The judge told Zuberi he could only request a full court comprising all judges. He then asked the lawyer whether it would be acceptable to him if the JCP declared all judges part of the CB, to which Zuberi replied in the affirmative.<\/p>\n\n\n\n

At one point, Justice Afghan observed, \u201cWhether you like it or not, Article 191A exists. The term \u2018full court\u2019 is not present in Article 191A.<\/p>\n\n\n\n

\u201cYou are saying to send the matter of a full court to the chief justice. Under Article 191A, the chief justice does not have the authority anymore,\u201d he added. The judge also noted that the judges Zuberi wanted to include in the full court were not a part of the CB, which now comprises a total of 13 judges<\/a>.<\/p>\n\n\n\n

Justice Afghan said Article 191A restricted constitutional matters to CBs only. \u201cIn the presence of Article 191A, do you not think that the constitutional bench judges complete the full court?\u201d<\/p>\n\n\n\n

The hearing was then adjourned till 11:30am tomorrow.<\/p>\n\n\n\n

<\/a>The petitions<\/h2>\n\n\n\n

The 26th Amendment had been challenged by various bar associations<\/a>, bar councils<\/a>, lawyers<\/a>, the PTI<\/a>, and some politicians<\/a>. The SC is also seized with separate petitions<\/a> seeking the formation of a full court to hear the matter, rather than the CB.<\/p>\n\n\n\n

The petitioners have requested the apex court to strike down the entire 26th Amendment on grounds of procedural impropriety if determined that the requisite two-thirds of the lawfully elected membership of each House did not freely exercise their right to vote in favour of the same as required under Article 239, which elaborates on bills and their passage to amend the Constitution.<\/p>\n\n\n\n

In the alternative, the petitioners pleaded, the court should strike down certain provisions of the 26th Amendment since they substantively undermine the independence of the judiciary, which is a salient feature of the Constitution.<\/p>\n\n\n\n

These included the provisions for annual performance evaluations<\/a> of high court judges by the JCP being inserted in Article 175A(1) and Articles 175A(18) to (20); the provisions relating to the appointment of the CJP<\/a> being the substitution to Article 175A(3), and the provisions for constitutional benches in the SC<\/a> and high courts<\/a>.<\/p>\n\n\n\n

The petitioners also challenged the constitutionality of the constitutional benches, arguing that the SC should declare invalid all amendments for which votes of such members whose election disputes were pending were necessary to achieve the prescribed numerical threshold in Article 239.<\/p>\n\n\n\n

They also called for the Practice and Procedure Act 2024<\/a> and the Supreme Court (Number of Judges) Act 2024<\/a> to be declared unconstitutional, void ab initio and of no legal effect, since they stem from an \u201cunconstitutional\u201d amendment and represent an attempt to achieve unconstitutional designs.<\/p>\n","protected":false},"excerpt":{"rendered":"

Justice Jamal Khan Mandokhail on Monday wondered whether judges comprising the Supreme Court\u2019s (SC) Constitutional Bench (CB) hearing petitions against the 26th Amendment could do so if they were its \u201cbeneficiaries\u201d. The Amendment was passed by the parliament during an overnight session in October last year, with the PTI claiming seven of its lawmakers were abducted to gain their favour as the party opposed the […]<\/p>\n","protected":false},"author":1,"featured_media":6714,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"rop_custom_images_group":[],"rop_custom_messages_group":[],"rop_publish_now":"initial","rop_publish_now_accounts":{"facebook_3859443944190656_828796993651875":""},"rop_publish_now_history":[],"rop_publish_now_status":"pending","footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[2,3],"tags":[],"class_list":{"0":"post-6713","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-leading","8":"category-pakistan"},"jetpack_publicize_connections":[],"_links":{"self":[{"href":"https:\/\/paksouch.com\/index.php?rest_route=\/wp\/v2\/posts\/6713","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/paksouch.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/paksouch.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/paksouch.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/paksouch.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=6713"}],"version-history":[{"count":1,"href":"https:\/\/paksouch.com\/index.php?rest_route=\/wp\/v2\/posts\/6713\/revisions"}],"predecessor-version":[{"id":6715,"href":"https:\/\/paksouch.com\/index.php?rest_route=\/wp\/v2\/posts\/6713\/revisions\/6715"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/paksouch.com\/index.php?rest_route=\/wp\/v2\/media\/6714"}],"wp:attachment":[{"href":"https:\/\/paksouch.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=6713"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/paksouch.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=6713"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/paksouch.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=6713"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}