Justice Amin-ud-Din urges reliance on 26th Amendment until new constitutional tweaks

• Hamid Khan requests SC to form full court on 26th Amendment.
• Lawyer argues majority in JCP has gone to the administrative side.
• "Judiciary's independence being affected due to judges' minority."

ISLAMABAD: Supreme Court's Justice Amin-ud-Din on Wednesday called for relying on the existing 26th Constitutional Amendment until there is any fresh tweak in the Constitution.

Justice Amin-ud-Din's remarks came as an eight-member constitutional bench led by him, heard pleas filed against the contested tweaks made by parliament in October 2024.

Other members of the bench include Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Ayesha A Malik, Justice Syed Hasan Azhar Rizvi, Justice Musarrat Hilali, Justice Naeem Akhter Afghan and Justice Shahid Bilal Hassan.

The hearing was live-streamed on SC's official YouTube channel in line with the apex court's decision. 

The development comes a day after the bench heard the petitions against the constitutional tweaks after a gap of nine months on Tuesday wherein the court allowed the live streaming of the case.

Multiple parties, including Pakistan Tehreek-e-Insaf (PTI), Jamaat-e-Islami (JI), Sunni Ittehad Council (SIC), as well as various bar associations and former presidents of the Supreme Court Bar Association (SCBA), had challenged the amendment back in October 2024.

The tweaks in the constitution, which have since come into effect, require the legislature to pick the chief justice, fixing the top post's tenure, and forming constitutional benches.

During the hearing today, Lahore High Court Bar Association's (LHCBA) lawyer Hamid Khan said that the 26th Amendment was passed in the dead of the night.

Hamid recalled that the eight judges of the current bench were part of the SC when the amendment was passed and requested the court to add the remaining eight judges to be made part of the constitutional bench.

"The existing 26th Constitutional Amendment will have to be relied upon until there are any further tweaks to the Constitution," responded Justice Amin-ud-Din.

Echoing his views, Justice Hilali said that irrespective of the legality of the amendment, the court has not suspended it yet.

Continuing his arguments, counsel Hamid highlighted that due to the 26th Amendment, the judges have become a minority in the Judicial Commission of Pakistan (JCP), whereas before they were in the majority.

"The majority in the JCP has gone to the administrative side after the [26th] amendment," he noted, while requesting the court to form a full court on pleas against the amendment.

"The fact that judges are not in the majority in the JCP is affecting judiciary's independence," Hamid claimed.

Responding to Justice Mazhar's question whether a bench constituted after the amendment can decide on a request for a full court, the lawyer said that the existing bench has to decide the matter of the constitutional tweaks.

Furthermore, Justice Amin-ud-Din questioned Hamid on what basis he was arguing that the constitutional bench could not hear the said case.

"It is not in our power to go back on the 26th Constitutional Amendment," the judge noted.

However, Hamid then went on to state that no one was preventing the formation of a full court in the 26th Amendment.

"The bench should send the case to the Chief Justice of Pakistan (CJP)," the counsel argued.

Speaking on the occasion, Justice Mandokhail said that the 26th Amendment is part of the Constitution as of the moment.

To this, Hamid responded that they were challenging the formation of the bench formed after the amendment.

"By what authority should we form a full court?" questioned Justice Ami-ud-Din.

Expressing her views, Justice Malik said that there is no prohibition on the formation of a full court via a judicial order.

"Where is it written in the 26th Amendment that there can't be a judicial order?" she questioned, adding that why can't this be done in the given case, as reflected in other cases.

The court, after hearing the arguments, adjourned the hearing till 11:30am tomorrow (Thursday).