Full court bench formation debate dominates SC hearing on 26th Amend

• Justice Amin leads eight-member bench hearing challenges against 26th Amendment; says lawyers, too, must depend on law currently in force
• Justice Khan remarks SC must rely on 26^th Amendment until struck down, adjourns hearing till Thursday
• Justice Ayesha Malik notes no bar on judicial order for larger bench as Hamid Khan insists on full court to hear petitions

ISLAMABAD: Supreme Court (SC) Justice Aminud Din Khan on Wednesday observed that the judiciary must rely on the existing Constitution until any amendment is formally struck down or replaced, as an eight-member constitutional bench heard challenges to the 26th Constitutional Amendment.

The bench, headed by Justice Aminud Din Khan, comprised Justices Jamal Khan 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.

At the outset, Advocate Hamid Khan opened his arguments by stating that the 26th Amendment had been introduced in Parliament late at night. Justice Aminud Din asked him first to assist the court regarding the formation of the bench. Justice Jamal Mandokhail interjected that whether the amendment was “good or bad” should not be discussed at this stage.

Hamid Khan clarified that he was not addressing the merits but presenting factual aspects, and requested that the petitions be heard by a full court — comprising all 16 judges who were present when the 26th Amendment was passed.

Justice Mandokhail questioned whether Hamid Khan acknowledged that the 26th Amendment was currently part of the Constitution. The lawyer replied that if a full court struck it down, it would be considered void ab initio (from the beginning).

Justice Aminud Din observed that until declared void, the amendment remains in force. “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 remarked.

Justice Mandokhail noted that the petitioners had appeared before a bench formed under the same amendment, while Justice Musarrat Hilali pointed out that the 26th Amendment was still valid as it had not been suspended.

Justice Muhammad Ali Mazhar directed Hamid Khan to confine his arguments to the request for a full court. The counsel argued that the amendment had curtailed the Chief Justice’s powers to form benches — a first in Pakistan’s constitutional history.

He further submitted that while the Judicial Commission had existed before, the 26th Amendment altered its composition, reducing the number of judges and giving non-judicial members greater representation.

Justice Aminud Din remarked that the key issue before the bench was to determine which forum had the authority to hear the petitions and whether a full court could be constituted under the court’s powers.

Justice Ayesha Malik observed that there was no restriction 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 noted that Hamid Khan’s written plea did not specifically include the demand for a full court, while Justice Mazhar questioned under which constitutional provision such an order could be passed — suggesting Article 187 might apply.

Hamid Khan agreed, saying Article 187 empowered the Supreme Court to issue such directives. Justice Mandokhail then asked whether the petitioner would be satisfied if all SC judges were considered part of the constitutional bench, to which Hamid Khan replied that the very concept of a “constitutional bench” stemmed from the 26th Amendment itself.

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

Justice Aminud 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. on Thursday.

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