Pleas against 26th Amendment: Constitutional bench issues notices to federation, others

ISLAMABAD: The constitutional bench issued notices to the federation and others in petition against the 26th constitutional amendment, applications for live-streaming of its proceedings, and setting up Full Court.

An eight-judge constitutional bench, headed by Justice Aminuddin Khan, on Monday, heard the preliminary objections of the petitioners. More than 22 petitions have been filed against the 26th constitutional amendment and the Supreme Court (Practice and Procedure) Amendment Act, 2024.

As the proceedings started the counsels argued that this bench cannot hear the case and requested to refer the matter to the chief justice of Pakistan to constitute full court. They pleaded as this bench is the creation of the 26th constitutional amendment; therefore, lack the jurisdiction.

Justice Amin then questioned whether his bench has no jurisdiction.

Justice Jamal Khan Mandokhail said now the entire Supreme Court is under the new constitutional dispensation. He said they have taken oath under the constitution, and bound to follow it, adding the chief justice is also appointed under new scheme.

Justice Ayesha A Malik said by the way of precedent when the amendments have been introduced in the constitution, the petitions against them are heard by the full court.

Hamid Khan, representing PTI, contended that in the past petitions against 18th and 21st Amendments were heard by the full court.

Justice Muhammad Ali Mazhar questioned how the constitutional bench, which is a creation of 26th constitutional amendment, can ask for full court, adding the bench was established by the Judicial Commission of Pakistan (JCP) in accordance with Article 191A of the Constitution. He said separate committees have been set up for fixing the cause, matter, appeal and review petition before the benches, and this bench has jurisdiction to hear only constitutional cases. The committee set up under Article 191A fixes the cases before the Constitutional Court.

Khawaja Hassan asked the bench that this case should go to the chief justice for constitution of full court.

Justice Mandokhail said in the present scheme of law, the JCP gives names for the constitutional bench. He remarked that the committee formed under Section 2(1) of the Supreme Court (Practice and Procedure) Act, 2023, forms the benches for every cause, appeal and review application. He asked whether the matter to constitute full court be referred to the Chief Justice or the Committee.

Justice Ayesha said as a precedent the request for full court is always placed before the Chief Justice, and there is no bar on it. If the CJP wants then the full court can be constituted.

Faisal Siddiqui said they have filed petitions and application for constitution of full court. He asked the bench to issue notices to the respondents and after hearing them decide on the full court for hearing of the petitions.

Justice Mazhar said when an eight judge-bench is the creation of 26th Amendment then how come they refer the matter to a full court.

Shahid Jamil argued that he has challenged the 26th Amendment as a whole and the authority of the Parliament to pass the amendment. The executive has been given dominance in the JCP.

Salahuddin Ahmed said the 26th amendment contravenes Articles 63A, 238, and 239 of the constitution, particularly, due to the absence of a fully constituted Parliament, coercion, harassment, and undue influence of members of the Parliament, illegal inclusion of votes of defecting parliamentarians that votes were not cast by all the lawmakers. The case was adjourned for three weeks.

Copyright Business Recorder, 2025