ISLAMABAD: The Supreme Court has been asked to declare that the Section 2 of the SC (Practice and Procedure) Amendment Ordinance regarding constitution of the Committee violates fundamental rights and is ultra vires and struck down.
Afrasiab Khattak, former senator and chairperson of the Human Rights Commission of Pakistan, and Farieha Aziz, a Karachi-based journalist, on Wednesday, filed a petition under Article 184(3) of the constitution and cited the secretary to the President, and the Federation through the secretary Ministry of Law and Justice as respondents.
The federal government on 20th September enacted the Supreme Court (Practice and Procedure) Amendment Ordinance, 2024, introducing a few changes in the Act 2023, particularly, in Section 2 (1) under that a three-member judges’ committee of the apex court decides on the formation of the SC benches and cases related to human rights. Earlier, the committee comprised chief justice and two senior-most judges of the Supreme Court. But the ordinance allowed the chief justice to nominate one member of the committee, from time to time.
The petitioners requested that this petition be heard by the Full Court which had earlier endorsed the 2023 Act by a majority decision. If not, the Chief Justice of Pakistan (who has been granted extra powers by the Impugned Section), Justice Aminuddin (who has been nominated by the CJP as a member of the Committee under the Impugned Section) and Justice
Munib Akhtar (who would be a member of the Committee if the impugned section is struck down) should not be part of any bench constituted to hear this petition.
The petitioners contended that the fundamental rights conferred under the Constitution lose meaning in the absence of an independent judiciary to enforce them. Through the impugned section (changed Sec 2), the executive has attempted to undermine judicial independence. The impugned section targets one Judge, the third most senior judge of the Supreme Court.
They said in the case of the 2023 Act, parliament created a committee of the chief justice and the two senior-most judges to constitute benches. In the case of the impugned section, there is a specific and obvious design to exclude one specific judge and grant controlling power to another, the chief justice of Pakistan. It is a blatant interference in judicial independence.
The Supreme Court has noted that the power to promulgate ordinances is limited to “emergent matters”, and the Constitution states that this is limited to situations where “immediate action” is required. There was no such emergency in the case of changing the composition of the Committee, and nor has the same been identified.
The impugned section violates Article 175(3) of the Constitution which commands that the judiciary shall be separated from the executive. The impugned section is a blatant attempt by the executive to encroach in the internal workings of the judiciary, and to undermine judicial independence.
An attack on judicial independence is an attack on access to justice and violates inter alia Articles 4, 9, 10, 10-A and 25 of the Constitution. It impacts access to justice and therefore, fundamental rights.
The independence of the judiciary is a salient feature of the Constitution, and must be safeguarded. The Objectives Resolution, which is now a substantive part of the Constitution by means of Article 2A of the Constitution, also states that independence of the judiciary shall be fully secured. The people have given to themselves a supreme document which guards judicial independence.
A full bench of this Court upheld the 2023 Act less than a year ago. The very rationale for upholding the law was to ensure that “one man” was not exercising absolute power as far as the constitution of benches is concerned. The Full Bench linked such democratising of decision-making with the legitimacy and the credibility of this Court. The Impugned Section is contrary to the judgment of the Full Bench in Raja Amer Khan and another vs. Federation of Pakistan (PLJ 2024 SC 114).
Copyright Business Recorder, 2024
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