CB epmhasises reliance on exisiting constitution until any further enactment

ISLAMABAD (Dunya News) – Supreme Court (SC) Justice Amin-ud-Din Khan remarked that the judiciary must rely on the existing Constitution until any amendment is formally enacted.

The SC held a live hearing on petitions challenging the 26th Constitutional Amendment. The eight-member constitutional bench, headed by Justice Amin-ud-Din Khan, included Justices Jamal Mandokhail, Muhammad Ali Mazhar, Ayesha Malik, Hasan Azhar Rizvi, Musarrat Hilali, Naeem Afghan, and Shahid Bilal. The proceedings were broadcast live on the Supreme Court’s official YouTube channel.

Advocate Hamid Khan’s arguments

At the outset, Advocate Hamid Khan began his arguments, stating that the 26th Amendment was introduced in Parliament late at night. Justice Amin-ud-Din asked him to first assist the court regarding the formation of the bench, while Justice Jamal Mandokhail remarked that whether the amendment was good or bad should not be discussed at this stage.

Hamid Khan said he was not discussing the merits but presenting certain facts. He requested that the case be heard by a full court — one that includes all 16 judges who were present when the 26th Amendment was passed.

Justice Mandokhail asked whether Hamid Khan agreed that the 26th Amendment is currently part of the Constitution. Hamid Khan replied that if the full court strikes it down, it will be considered void from the beginning.

Justice Amin-ud-Din remarked that until it is declared void, it remains part of the Constitution. “We rely on the Constitution, and so must the lawyers. Until the Constitution is amended, we have to depend on the one in force,” he said.

Justice Musarrat Hilali: “The amendment has not yet been suspended.”

Justice Mandokhail added that the petitioners had appeared before a bench formed under the very same amendment, while Justice Musarrat Hilali noted that the amendment is still valid as it has not been suspended.

Justice Muhammad Ali Mazhar directed Hamid Khan to confine his arguments for now to the request for a full court. Hamid Khan said he wished to highlight how the 26th Amendment affected the Chief Justice’s powers to form benches, noting that this authority had been curtailed for the first time.

He argued that before the amendment, the Judicial Commission already existed, but the 26th Amendment altered its composition, reducing judges to a minority in the Commission.

Justice Amin-ud-Din noted that the main issue was determining which bench had the authority to hear the case and whether the court could form a full bench under its powers.

Justice Ayesha Malik: “No restriction on forming a full court through judicial order.”

Justice Ayesha Malik remarked that there is no bar on forming a full court through a judicial order, asking, “Where in the 26th Amendment does it say that such an order cannot be issued?”

Justice Naeem Afghan pointed out that Hamid Khan’s written request did not specifically include the demand for a full court, while Justice Mazhar questioned under which constitutional provision the order could be made — suggesting Article 187 might apply.

Hamid Khan affirmed that Article 187 empowered the court to issue such orders. Justice Mandokhail asked whether Hamid Khan would be satisfied if all Supreme Court judges were treated as part of the constitutional bench, to which he responded that the very concept of a “constitutional bench” originated from the 26th Amendment.

Justice Mandokhail replied that Parliament, not the judiciary, had introduced that concept. Hamid Khan urged the court to “forget about Article 191A for a moment,” prompting Justice Mazhar to ask rhetorically, “If we forget that, then what remains of the constitutional bench — why are we even sitting here?”

Justice Amin-ud-Din added, “If we forget that, the Supreme Court itself ceases to exist. Without this constitutional bench, how could we pass any orders?”

After Hamid Khan concluded his arguments, the court adjourned the hearing until 11:30 a.m. tomorrow.

It may be recalled that the constitutional bench had ordered live streaming of the proceedings after hearing the parties yesterday. The first hearing on petitions challenging the 26th Constitutional Amendment was held on January 27, 2025.