Will constitutional court sustain pressure?

Amid scores of challenges faced by Supreme Court's first constitutional bench, the biggest test is to uphold the independence of judiciary by standing firm against all odds, particularly the eminent influence from the executive or other state institutions.

Since March 2009, the apex court played a key role in shaping the national politics. Before the passage of 26th constitutional amendment, there was no major challenge from external forces on SC judges. CJP, being the head of institution, was setting the agenda for the court, which further weakened the democracy in the country.

The relationship between SC and security establishment remained cordial in past. There is no doubt that major political parties, especially PPP and PMLN, remained victim of judicial activism of ex CJPs Iftikhar Muhammad Chaudhry and Mian Saqib Nisar.

The institution witnessed the division within the ranks, when CJPs exercised discretionary powers to get favourable results. Even judges started external help against each other in recent past.

During ex CJP Umar Ata Bandial's tenure, SC was divided into two camps. The executive got advantage and regulated the CJP's discretionary powers through Supreme Court Practice and Procedure Act 2023.

Likewise, PDM led government and ECP refused to implement the SC judgement for holding of KP and Punjab assemblies general elections within 90 days.

When Justice Qazi Faez Isa took charge as CJP in September 2023, it was being expected that superior judiciary will be united. Contrary to the expectations, the institution saw even more differences among the ranks of SC judges during Justice Isa tenure.

Finally, CJP Isa and his like-minded' judges facilitated the government to bring 26th constitutional amendment. They overturned SC judgement, making the vote of defecting lawmaker counted under Article 63A of constitution.

The SC decision paved way for the government to pass constitutional amendment. Subsequently, two senior judges namely Justice Syed Mansoor Ali Shah and Justice Munib Akhtar were superseded by incumbent CJP Justice Yahya Afridi.

Likewise, the government also managed to appoint Justice Amin ud-Din Khan as head of constitutional benches. Even members of constitutional benches are being selected by the government side.

Now the first constitutional bench will start hearing of constitutional cases at the time when the executive influence has increased on the judiciary.

Lawyers believe that the biggest challenge for the constitutional bench is to show his impartially in high profile cases.

It is unclear at the moment if the first hearing of the constitutional bench will be live streamed for the public.

Abdul Moiz Jaferii advocate expects that in line with CJP Yahya Afridi directive, and judgments of the court in CJP Qazi faez Isa's reference, matters of such importance which require five constitutional judges must be live streamed.

Former additional attorney general Tariq Mahmood Khokhar says that the 26th constitutional amendment represents a statist approach to a "recalcitrant" judiciary; the constitution of a 6-member constitutional bench is wholly inadequate to further that approach, especially so soon amidst constitutional crisis.

"A case in point is the reserved seats appeal. It was decided by 13 judges. Same judges must sit in review, subject to availability. A 6-member constitutional bench simply won't do.

A constitutional petition against the 26th constitutional amendment has been filed. Judicial propriety requires restraint pending its adjudication. A larger constitutional bench (comprising, perhaps, all Supreme Court judges) would be an appropriate constitutional bench.

A comparably smaller constitutional bench mired in controversy, lacking public legitimacy, sitting in judgment on the purported constitutional amendment will not enhance public acceptance, nor moral authority of an already fractured Supreme Court", he adds.

Pakistan Bar Council and Supreme Court Bar Association are fully backing the formation the constitutional benches.