ISLAMABAD: The Supreme Court was asked to declare that 26th Constitutional Amendment was passed contrary to the Constitution and law and is thus non est, void ab initio and has no legal effects.
Two more petitions were filed on Friday assailing the 26th Constitutional Amendment, one by former Chief Minister of Balochistan and President of Balochistan National Party Akhtar Mengal, former Speaker National Assembly Fehmida Mirza, former Senator and Minister Mustafa Nawaz Khokhar and ex-MNA Mohsin Dawar, and other by Karachi-based lawyer Salahuddin Ahmed.
They have requested that the matter be placed before a Full Court of all eligible judges. They contended that the trichotomy of power requires mutual respect among the three organs of State; the executive, the legislature and the judiciary.
JI moves SC against 26th Amendment
In the past, there have been genuine complaints about judicial overreach into the executive and legislative domain. The instant case, however, involves parliamentary overreach into judicial domain.
The three organs of State, necessarily, impose certain checks and balances on the other – this delicate system must not descend into a game of constitutional tit for tat.
The petitioners also prayed to direct independent inquiry into the manner in which votes were coerced and procured in Parliament in relation to the said Act. They also asked the apex court to declare that Sections 7, 14, 17 and 21 of the said Act are substantively ultra vires and void ab initio being violative of the independence of the judiciary that is salient feature of the constitution.
The manner and circumstances in which the said Act was passed was constitutionally defective. It is thus non est. It has no legal force and is not an Act at all. The legal position remains the same as it was prior to its purported promulgation.
The so-called “Constitutional Benches” cannot examine the constitutionality of the very legislative instrument that creates them. Nor can members of the Constitutional Bench be judges in their own cause.
The said Act created a new Judicial Commission including the senior-most member of “Constitutional Benches”. But Constitutional Benches themselves could only be formed by the Commission. This chicken-or-egg situation is the result of defective legislative drafting. The lacunae cannot be resolved by resort to Article 175A (3D) because the non-existence of a constituent office is different to vacancy in that office or the mere absence of an office-holder.
The said Act is also substantively ultra vires the salient features of the Constitution relating to the independent of judiciary and trichotomy of powers and federalism.
At the time of the said Act’s passage in Senate, the province of Khyber Pakhtunkhwa was under-represented by half (i.e. 11 members). This was on account of mala fides of the ECP, its Commissioner and members; who not only refused to implement this Court’s order in Sunni Ittehad Council vs ECP in relation to reserved seats but refused to hold Senate elections for Khyber Pakhtunkhwa.
The so-called Special Parliamentary Committee and all its proceedings and acts are non est, a nullity and void ab initio; By entrusting appointment of judges to the superior judiciary to a so-called Judicial Commission where judges are in minority and political (executive or legislative) appointees are in the majority.
By allowing such politicised Commission to form Constitution Benches with exclusive jurisdiction within the Supreme Court and stripping the remaining judges of their judicial powers under the Constitution.
By allowing the said Commission to form Constitution Benches within the High Courts with exclusive jurisdiction and stripping the remaining judges of the High Courts of their existing judicial power under the Constitution.
Parliament cannot strip the remaining judges of the Supreme Court or High Courts of their existing judicial powers under the Constitution.
They submitted that the amendment to Article 175-A providing for a Commission with a minority of judicial members offends the salient constitutional feature of independence of judiciary and subordinates the legal and professional competence of judicial appointee to his political acceptability.
Copyright Business Recorder, 2024
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