Islamabad:
Petitioners challenging the 26th Constitutional Amendment have managed to persuade a constitutional bench (CB) of the Supreme Court to allow live streaming of court proceedings.
However, experts say the real challenge for the petitioners will be convincing the CB to order the constitution of a full bench to hear petitions against the amendment, which many believe have undermined the independence of the judiciary.
An eight-member CB, headed by Justice Amin-ud-Din Khan, on Tuesday unanimously allowed live streaming of proceedings on petitions challenging the amendment dragged through Parliament in October last year.
Some CB members expressed apprehensions that live streaming procedures had been used previously. Despite these concerns, the bank allowed the petitioners’ request.
The legal fraternity appreciated the CB’s decision.
Lawyer Abdul Moiz Jaferii said that live streaming of cases involving fundamental rights has been recognized by the Supreme Court as a public obligation.
“It has become an invaluable tool for legal and lay analysis and commentary. It opens the doors of justice to everyone with an Internet connection and allows real access to the judicial decision-making process.
“It should be the norm in all high courts across the country. It allows both judges and lawyers to be aware of their audience, and where the public interest is at stake, this is a critical step forward,” Jaferii said.
Now, the real test for the CB is whether applications seeking constitution of a full tribunal 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 on Law (PAPA) to list petitions against the 26th Constitutional Amendment for hearing by a full bench.
The PAPA committee on October 31, 2024 directed the SC Registrar by a majority of 2-1 to list the petitions on November 4, 2024. However, the cases were not scheduled for hearing. The CB on Tuesday ordered Khokhar’s petition 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 free itself from the chains spun around it through the 26th Constitutional Amendment, or it will submit completely to the will of those who have traditionally been hostile to the idea of an independent judiciary,” he stated.
Khokhar added that at today’s hearing, they will strongly argue for a full court to hear this case, citing two key reasons.
“First of all, the majority decision of the PAPA committee must be confirmed, making the dissenting view of the President of the President non-binding.
“Secondly, the CB, being a product of the 26th Constitutional Amendment, cannot impartially judge 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 of the matter being referred to Chief Justice of Pakistan (CJP) Yahya Afridi for constitution of a full bench.
A senior lawyer said there are strong chances of all CB judges being included in the bench hearing the 26th constitutional amendment case.
Currently, the total number of CB members is 15. However, the lawyer noted that a full bench of 17 members heard petitions against the 18th and 21st constitutional amendments. “At least 17 members should hear these petitions against the 26th Constitutional Amendment,” he added.
Some lawyers said the government cannot afford to include Justice Syed Mansoor Ali Shah, Justice Munib Akhtar and Justice Athar Minallah in the bench hearing the case.
It will be 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 seriously affect the bank’s legitimacy.
They wonder how the CB, whose creation under the 26th Amendment is 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 its restoration in 2009.
There was a consideration in the mind of the former CJP that a judge should have the courage to defend the independence of the judiciary, which is now under threat.
However, it is also a fact that the independent group, which holds the majority in the Pakistan Bar Council and the Supreme Court Bar Association, supports the 26th Constitutional Amendment. The same group has also benefited from the functioning of the system under this amendment.
On the other hand, Hamid Khan, who heads the professional group, has declared that the upcoming SCBA elections will be a referendum against the 26th Constitutional Amendment.
