The Constitution Bench of the top court has observed that its orders and judgments are protected even if the 26th Amendment is struck down. Justice Aminud Din Khan, head of the Constitutional Bench, authored a five-page written order on an application moved by former Chief Justice Jawwad S. Khwaja regarding the adjournment of military court cases until the decision on the 26th Amendment.
Khwaja, the petitioner, challenged the government's decision to try those involved in the May 9 incidents in a military court. The seven-judge bench has been hearing the government's Intra-Court Appeal on the top court's judgment, which declared that civilians cannot be tried by military courts.
In his application, Khwaja contended that the validity of the 26th Amendment should first be decided, and therefore, the hearing of these appeals should be deferred. When the court queried the nexus between the decision on the challenge to the 26th Amendment and the hearing of the appeals, the counsel explained that this Bench had been constituted under the said amendment, thus the request for adjournment.
He further argued that if the appeals were decided before the challenge to the 26th Amendment and the amendment was ultimately set aside, the decision on the appeals would also be invalid. The constitutional bench expressed astonishment at this argument, stating that even if any legislation or constitutional provision is declared ultra vires (unconstitutional) or an amendment is struck down, the decisions made by a competent court before such a ruling are safe and protected.
The bench also emphasized that the current Supreme Court is functioning in accordance with the Constitution. The written order noted that the constitutional bench had reviewed the record and observed that, even before the 26th Amendment came into effect on October 21, 2024, six of the seven judges on the current bench were members of the earlier bench hearing the appeals.
The bench noted that the respondent side had been resisting the hearing of the appeals even before the 26th Amendment was introduced. On the applicant's side, objections were raised regarding the formation of the bench. However, after the seven-member bench was constituted by the Committee under Section 2(1) of the Supreme Court (Practice and Procedure) Act, 2023, the applicant was satisfied with the formation of the bench.
Afterward, counsel for the other respondents raised objections regarding the appointment of counsel for the appellant, among other issues, including a request for live streaming of court proceedings, which was subsequently withdrawn.
The written order further clarified that, since a six-member constitutional bench was available to hear the matters, and the case was originally to be heard by a seven-member bench, a three-member committee was tasked with nominating a judge to complete the seven-member bench. The Judicial Commission of Pakistan nominated a judge for the Constitutional Bench on December 6, 2024, and the hearing of these appeals was scheduled accordingly.
The order also observed that the application for adjournment was filed without bona fide grounds and appeared to be aimed solely at delaying the proceedings. The bench pointed out that the rights of the accused, who have been incarcerated for more than a year and a half, should not be ignored. Additionally, the counsel failed to demonstrate how the decision on the petition challenging the 26th Amendment would affect these appeals. Therefore, the application was deemed frivolous and was dismissed with a cost of Rs. 20,000.
Before beginning the main hearing, the bench inquired if anyone in the court sought a deferment of the appeals. However, only Hafeez Ullah Khan Niazi, who stated that his son is incarcerated, appeared to request an early disposal of the appeals. Advocate Faisal Siddiqui submitted a written request for adjournment due to urgent family commitments, but the constitutional bench ruled that this was not a valid reason for granting an adjournment.