An eight-judge Constitutional Bench (CB) of the Supreme Court (SC) approved on Tuesday a set of requests seeking the live streaming of proceedings on pleas challenging the 26th Amendment.

The Amendment, which was approved by both houses of parliament in October last year, altered judicial authority and tenure, and has been a lightning rod for debate with both opposition parties and legal experts questioning its impact on the judiciary’s autonomy.

It took away the SC’s suo motu powers, set the chief justice of Pakistan’s (CJP) term at three years and empowered the prime minister to appoint the next CJP from among the three most senior SC judges. It also paved the way for the formation of the CB, which is now hearing petitions against the very legislation that led to its establishment.

It has been challenged by various high court bar associations, the PTI and others.

A CB headed by Justice Aminuddin Khan and comprises Justices Jamal Khan Mandokhail, Muhammad Ali Mazhar, Ayesha Malik, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhtar Afghan and Shahid Bilal Hassan resumed hearing the set of pleas today, which were last taken up on January 27.

Today’s hearing

During today’s hearing, three matters were primarily discussed — the constitution of a full court to hear the pleas against the 26th Amendment, objections to the CB and live streaming of the proceedings.

At the outset of the hearing, Justice Aminuddin Khan said the bench would first hear arguments on requests for a full court hearing on the pleas and objections to CB. “We will decide on the matter of live streaming (of court proceedings) later,” he added.

At that, lawyer Khawaja Ahmad Hassan argued that arguments on pleas seeking a full court hearing should be live-streamed so that the public was also made aware of the grounds on which the request was being made. He then urged the court to first hear arguments on requests for streaming the proceedings live.

Justice Aminuddin Khan remarked that matters of the bench were of relevance to the court, not the public. He asserted that the court would first take up the matter regarding the constitution of a full court.

At one point during the hearing, he said, “Things have to be managed. All of us are serving the public, we are all fulfilling our responsibilities.”

The counsel for Tehreek-i-Tahaffuz Ayeen-i-Pakistan Vice Chairperson Mustafa Khokhar, Shahid Jameel, informed the court that the SC registrar had raised objections over his client’s plea for a full court hearing.

“We filed an appeal against the objections,” he said, requesting the court to first decide Khokhar’s appeal. He further said that his client had also raised objections over the CB and urged the court to hear it along with the other petitions.

After consultation among the judges, Khokhar’s petition was allotted a number.

The lawyer representing the Khyber Pakhtunkhwa government also presented arguments for a full court hearing of pleas.

He clarified that they did not have any objection regarding any of the members of the existing eight-judge CB but wanted a full court to hear the pleas.

During his arguments, Barrister Salahuddin Ahmed contended that every citizen had the right to information. However, neither was the draft of the 26th Amendment made public nor was there a public debate on it, he argued.

He then argued that at least proceedings should be live-streamed for public viewing.

He recalled that the 26th Amendment was approved by parliament “in the darkness of the night”, adding that previously court proceedings had also been streamed live, including those in Zulfikar Bhutto case and the case pertaining to the Supreme Court (Practice and Procedure) Act.

He said senior advocate of the SC Makhdoom Ali Khan had declared the 26th Amendment case the “constitutional case of the century”, arguing that a full court or a full CB should hear the case.

Following his arguments, Justice Afghan enquired, “So you want that apart from the proceedings taking place in broad daylight, they should also be live-streamed?”

To that, Barrister Ahmed said, “The Amendment was passed in the darkness of the night. That is why facts must be revealed to the public.”

Following that, the bench reserved its decision on requests seeking live streaming of the proceedings.

During the hearing, Justice Malik also asked Additional Attorney General Amir Rehman about the government’s stance on the live streaming of court proceedings.

To that, Rehman said the matter was administrative.

“So you will agree with whatever the bench decides?” asked Justice Mazhar.

At one point, Justice Mandokhail remarked, “This is a big case, we will proceed on this in an orderly manner.”

Eventually, the court approved the requests for live streaming the case’s proceedings and adjourned the hearing till 11:30am tomorrow (Wednesday).

The petitions

The petitioners have requested the apex court to strike down the entire 26th Amendment on grounds of procedural impropriety if determined that the requisite two-thirds of the lawfully elected membership of each House did not freely exercise their right to vote in favour of the same as required under Article 239, which elaborates on bills and their passage to amend the Constitution.

In the alternative, the petitioners pleaded, the court should strike down certain provisions of the 26th Amendment since they substantively undermine the independence of the judiciary which is a salient feature of the Constitution: namely the provisions for annual performance evaluation of judges of the high court by the Judicial Commission of Pakistan being inserted in Article 175A(1) and Articles 175A(18) to (20); the provisions relating to the appointment of the chief justice of Pakistan being the substitution to Article 175A(3), and the provisions for constitutional benches of the apex court and high courts.

As a consequence, the court should declare that the original Article 175A(3) holds the field and direct the federal government to notify SC’s senior-most judge as CJP in accordance with the original Article 175A(3), the petitioners argued.

The petitioners also challenged the constitutionality of the constitutional benches, arguing that the SC should declare invalid all amendments for which votes of such members whose election disputes were pending were necessary to achieve the prescribed numerical threshold in Article 239.

They also called for the Supreme Court (Practice and Procedure) Act 2024 and the Supreme Court (Number of Judges) (Amendment) Act 2024 to be declared unconstitutional, void ab initio and of no legal effect, since they stem from an unconstitutional amendment and represent an attempt to achieve unconstitutional designs.

The petitioners also requested the SC for a full court hearing of the pleas instead of a hearing by the CB, which was established under the 26th Amendment.

‘Opportunity lost’

Between January and now, there have been multiple calls for a full court hearing of these pleas.

On August 14, two responses from Chief Justice of Pakistan Yahya Afridi were uploaded on the court’s website, explaining why he had disregarded a decision made last year by a committee to bring challenges to the 26th Amendment before the full SC.

The committee, which met on Oct 31, 2024, under the Practice and Procedure Act (PPA) 2023, was convened by senior puisne judge Justice Syed Mansoor Ali Shah and Justice Munib Akhtar. In response, CJP Afridi, who chairs the committee, said he did not find it appropriate to call for a full court hearing.

The CJP had argued that such a move would undermine the much-needed spirit of collegiality among judges and expose the apex court to public comment, which, he noted, had regrettably been the case in the recent past.

On Aug 20, Justices Shah and Akhtar wrote a joint letter to the CJP, following the SC decision to make public the Oct 31 committee’s minutes.

In their joint letter, Justice Shah and Justice Akhtar observed: “The challenges to the 26th Amendment continue to remain pending and a golden opportunity to decide them at the earliest instance before the institution as a whole — i.e. the full court as it then stood — has been lost, perhaps irretrievably.”