ISLAMABAD:
The Supreme Court’s Constitutional Bench on Wednesday heard arguments in the appeal against the 26th Constitutional Amendment, seeking assistance from senior lawyer Hamid Khan regarding the formation of the bench.
An eight-member constitutional bench, headed by Justice Aminuddin Khan, conducted the hearing. The proceedings were broadcast live on the Supreme Court’s official YouTube channel.
During the hearing, Advocate Hamid Khan, representing the Lahore High Court Bar Association and Lahore Bar Association, objected to the composition of the constitutional bench and called for the formation of a full court, including eight more judges.
Hamid Khan contended that the 26th Amendment had been brought before parliament late at night and passed in undue haste last year. Justice Aminuddin, however, directed him to first assist the court on the issue of bench formation.
Justice Jamal Mandokhail remarked that the merits of the amendment should be set aside for now, prompting Hamid Khan to clarify that he was not discussing the substance of the case but merely laying out the facts.
He argued that the case should be heard by a full court as it existed prior to the 26th Amendment, which would comprise sixteen judges. He requested that the remaining eight judges from that time be included in the current bench.
Justice Aminuddin observed that until a constitutional amendment was struck down, it remained part of the Constitution, and therefore the arguments should proceed while accepting it as such. Justice Mandokhail reminded the lawyer that he was appearing before a bench constituted under the same amendment, while Justice Musarrat Hilali pointed out that the amendment had not been suspended.
Reiterating his stance, Hamid Khan argued that the 26th Amendment was passed hastily and without sufficient debate. However, Justice Aminuddin told him that those arguments related to the main case and should be presented at a later stage.
Insisting on the significance of the issue, Hamid Khan maintained that he was merely discussing the procedure through which the amendment was approved. Justice Mandokhail advised him to continue with arguments focused on the formation of the bench.
Justice Aminuddin reiterated that both the court and the lawyers relied on the Constitution as it stood, adding that until it was amended, it must be upheld in its existing form. Justice Hilali noted that by challenging the amendment, the petitioner had in fact recognised it as part of the Constitution.
Justice Muhammad Ali Mazhar reminded Hamid Khan that the main case was not yet under hearing and asked him to confine his arguments to the request for a full court. Hamid Khan replied that he was not yet discussing the constitutional violations but wished to highlight the impact of the amendment on judicial powers.
He argued that the amendment had, for the first time, taken away the chief justice’s authority to form benches and altered the procedure for their constitution. He also contended that it had affected the composition of the Judicial Commission, reducing the judges to a minority position.
Justice Aminuddin noted that the court had not yet decided which bench would hear the case and questioned under what authority a full court could be constituted. Justice Ayesha Malik observed that there was no restriction on forming a full court through a judicial order.
She asked where in the 26th Amendment it was stated that such an order could not be issued. Justice Naeem Akhtar Afghan pointed out that Hamid Khan had not made such a request in his written petition, while Justice Mazhar asked whether the court could invoke Article 187 to issue such an order.
Hamid Khan responded that the court did have that authority under Article 187 to ensure complete justice. Justice Mandokhail then smiled and asked whether Hamid Khan would be satisfied if all Supreme Court judges were considered part of the constitutional bench. The lawyer replied that the very concept of a constitutional bench had been introduced through the 26th Amendment.
Justice Mandokhail remarked that it was parliament, not the judges, that had created the provision. At one point, Hamid Khan suggested that the judges should momentarily disregard Article 191-A. Justice Mazhar quipped that if they did so, the constitutional bench itself would cease to exist.
Hamid Khan reiterated his request for the case to be heard by the full court as it existed at the time of the 26th Amendment and asked that the remaining eight judges from that period be included. After hearing his arguments regarding the formation of the bench, the court adjourned proceedings until 11:30 a.m. on Thursday.
