ISLAMABAD: Pakistan Tehreek-e-Insaf (PTI) Chairman Gohar Ali Khan challenged the vires of the Supreme Court (Practice and Procedure) (Amendment) Ordinance, 2024, and prayed that purported re-constitution of the Committee and any decisions taken by it be declared without lawful authority and be set aside.
A day ago (September 25), Afrasiab Khattak, former Senator and chairperson of the Human Rights Commission of Pakistan, and Farieha Aziz, a Karachi-based journalist, also filed a petition against the said ordinance, praying the Supreme Court to declare that the Section 2 of the Ordinance regarding constitution of the Committee violates fundamental rights and is ultra vires the constitution, therefore, be struck down.
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.
PTI chairman Barrister Gohar on Thursday filed a constitutional petition also prayed that during the pendency of the instant petition, the Committee under the impugned ordinance may very kindly be restrained from constituting the benches and fixation of cases, and the lawfully constituted Committee under Supreme Court (Practice and Procedure) Act, 2023 consisting of the chief justice of Pakistan and the two next senior-most judges may be allowed to continue functioning.
Gohar said by giving the Chief Justice of Pakistan discretion to nominate any judge on the Committee, in effect allows him to ensure that a nominee willing to concur with him is always a member of the Committee and that he is always in a majority.
He contended that the impugned ordinance is contrary to the judgment of the Full Court of the Supreme Court in the case of Raja Amer vs. Federation of Pakistan (PLJ 2024 SC 114), ultra vires the Articles 4, 9, 10A, 19A, 25, 89, 175(3), and 191 of the Constitution, and violates the principles of separation of powers and independence of the judiciary that are salient features of the Constitution and guaranteed by, inter alia Articles 4 and 175(3).
He stated that through Section 3 of the impugned ordinance, made it mandatory for a Bench hearing a matter under Article 184(3) of the Constitution to decide the maintainability of the petition first, through a reasoned and speaking order, while through Section 4 of the impugned ordinance, a right of appeal has been added against that order on maintainability.
Similarly, through Section 5 of the impugned ordinance, a new Section 7A has been inserted into the P&P Act 2023, which dictates the order in which cases may be heard by the Supreme Court i.e. on a “first-in first-out” basis “unless transparent criteria is already mentioned” or the applicable law stipulates a time period within which cases must be decided.
Gohar maintained that the impugned ordinance is a direct attack on the independence of the judiciary as it is an attempt by the Executive to interfere in, and control, the fixation of matters in the Supreme Court. It contravenes Article 89 of the Constitution as the pre-requisites for issuing a presidential ordinance as stipulated in the said Article are not met. In fact, the timing, motivation behind, and the mode and manner of its issuance are seriously questionable.
Copyright Business Recorder, 2024