The petitioners challenging the 26th Constitutional Amendment have succeeded in persuading a constitutional bench (CB) of the Supreme Court to allow live streaming of the court proceedings.
However, experts state that the real challenge for the petitioners will be to convince the CB to order the constitution of a full court to hear the petitions against the amendment, which, many believe, have undermined independence of judiciary.
An eight-member CB, led by Justice Amin-ud-Din Khan, on Tuesday unanimously allowed live streaming of the proceedings on petitions challenging the amendment bulldozed through parliament in October last year.
Some members of the CB expressed apprehensions that live-streamed proceedings had previously been misused. Despite these concerns, the bench allowed the petitioners' request.
The legal fraternity appreciated the CB's decision.
Advocate Abdul Moiz Jaferii said live streaming of cases involving fundamental rights has been recognised by the Supreme Court as a public obligation.
"It has developed into an invaluable tool for legal and lay analysis and commentary. It opens the doors of justice to everyone with an internet connection and allows actual access to the process of judicial decision-making.
"It should be the norm in every superior court across the country. It allows both judges and lawyers to be conscious of their audience, and where the public interest is at stake, this is a critical step forward," said Jaferii.
Now the real test for the CB is whether the applications seeking the constitution of a full court will be allowed for hearing or not.
Former senator Mustafa Nawaz Khokhar has already filed a petition through Advocate Shahid Jamil Khan seeking implementation of the majority decision of the Supreme Court (Practice and Procedure) Act Committee (PAPA) to list the petitions against the 26th Constitutional Amendment for hearing by a full court.
The PAPA committee on October 31, 2024, directed the SC Registrar by a 2-1 majority to list the petitions on November 4, 2024. However, the cases were not scheduled for hearing. The CB on Tuesday ordered that Khokhar's petition be listed for hearing along with the objections.
Commenting on the importance of the 26th Constitutional Amendment case, Khokhar said that it will prove to be one of the most impactful cases in Pakistan's legal history.
"Either the judiciary will reassert itself and break free from the chains spun around it through the 26th Constitutional Amendment, or it will submit entirely to the will of those who have traditionally been hostile to the idea of an independent judiciary," he stated.
Khokhar added that in today's hearing, they will argue strongly for a full court to hear this case, citing two key grounds.
"Firstly, the PAPA committee's majority decision should be upheld, rendering the chief justice's dissenting view non-binding.
"Secondly, the CB, being a product of the 26th Constitutional Amendment, cannot impartially adjudicate on its own validity, creating a clear conflict of interest.
In view of the CB's earlier refusal to include the original members of the bench in the reserved seats case, there is little chance that the matter will be referred to Chief Justice of Pakistan (CJP) Yahya Afridi for the constitution of a full court.
A senior lawyer said there are strong chances that all CB judges will be included in the bench hearing the 26th Constitutional Amendment case.
Currently, the total number of CB members is 15. However, the lawyer noted that petitions against the 18th and 21st Constitutional Amendments were heard by a 17-member full court. "At least 17 members should hear these petitions against the 26th Constitutional Amendment," he added.
Some lawyers said that the government cannot afford the inclusion of Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, and Justice Athar Minallah in the bench hearing the case.
It will become clear today whether the CB judges are interested in including the two senior judges in this bench, they added
Some experts also believe that the exclusion of Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Athar Minallah, Justice Shahid Waheed, and Justice Malik Shahzad Ahmad Khan from this case will badly affect the legitimacy of the bench.
They wonder how the CB, whose very creation under the 26th Amendment is being questioned, could decide this matter.
Most of the judges in the Supreme Court were appointed by former CJP Iftikhar Muhammad Chaudhry in various high courts after his restoration in 2009.
There was one consideration in the former CJP's mind that a judge should have the courage to take a stand for the independence of the judiciary, which is now under threat.
However, it is also a fact that the Independent Group, which holds a majority in the Pakistan Bar Council and the Supreme Court Bar Association, is supporting the 26th Constitutional Amendment. The same group has also benefited from the system functioning under this amendment.
On the other hand, Hamid Khan, who heads the Professional Group, has declared that the upcoming SCBA election will be a referendum against the 26th Constitutional Amendment.
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