ISLAMABAD: The Pakistan Tehreek-e-Insaf (PTI) challenged the 26th Amendment Act, 2024 contending the legislation in its entirety violates the constitution in letter and spirit, independence of judiciary, rule of law, federalism, and parliamentary democracy.
Chairman PTI Barrister Ali Gohar Khan on Saturday filed a constitutional petition under Article 184(3) of the constitution.
An eight-judge constitutional bench, headed by Justice Amin-ud-Din Khan, will take up the petitions against the 26th Amendment tomorrow (January 27).
The amendment, passed in October of 2024, introduced key changes to the judicial appointment process, specifically in Article 175-A. These changes were significant, especially as the amendment altered the procedure for selecting the Chief Justice of Pakistan.
The petitioner demanded that a Full Court be formed for the hearing of the petition against the 26th Amendment Act, which has direct and profound implications for the independence, structure, and functioning of the judiciary, including the composition of the apex court. The gravity of these constitutional questions requires the highest level of judicial scrutiny, which can only be achieved through deliberation by the Full Court.
He submitted that the Supreme Court in the past constituted Full Courts to address matters of similar constitutional significance. Challenges to the constitutional validity of the 18th and 21st Amendments were also heard by a Full Court.
He emphasised that nothing in Article 191A (3) of the constitution, added through the 26th Amendment, oust the jurisdiction of the Supreme Court sitting as a Full Court. The jurisdiction conferred by the constitution under Article 184 (3) is conferred on the Supreme Court, and not on any bench of the said court.
It is argued that Section 7 of the Amendment introduces sweeping changes to Article 175A of the constitution, fundamentally restructuring the Judicial Commission of Pakistan (JCP). It reduced the number of Supreme Court judges in the JCP. The Amendment also introduced a new process for the appointment of the Chief Justice of Pakistan. The principle of seniority is replaced with a selection by a parliamentary committee dominated by government representatives,
The petitioner maintained that Section 21 of the 26th Amendment substitutes Article 209 of the constitution to expand the grounds for removing a judge to include “inefficiency in the performance of the duties of his office”. This amendment introduces a vague, undefined, and arbitrary standard for assessing judicial performance, departing from the earlier, well-established grounds for mental incapacity and misconduct and is liable to be struck down as being ultra vires of the constitution.
He prayed that the 26th Amend Act, 2024 be declared to violate the salient features of the constitution, including the independence of the judiciary, rule of law, federalism, separation of powers, parliamentary democracy, and fundamental rights and therefore unconstitutional, void.
He prayed to declare that the process by which the 26th Amendment was enacted contravenes Articles 63A, 238, and 239 of the constitution, particularly due to the absence of a fully constituted Parliament, coercion, harassment, and undue influence of members of the Parliament, illegal inclusion of votes of defecting parliamentarians, and procedural irregularities that undermined the legitimacy of its passage, and is therefore unconstitutional, void ab initio, and of no legal effect.
He also prayed to declare the nomination/ appointment of Constitutional Benches and additional judges of the High Court, and set aside such nominations and appointments.
He further prayed to declare that the Constitution in its form as it existed prior to the enactment of the 26th Amendment continues to operate and be legally effective.
Copyright Business Recorder, 2025
Comments