ISLAMABAD: The Supreme Court has been asked to declare 26th Constitutional Amendment Act, 2024 ab initio void and non-est being in violation of the salient features of the Constitution.
Eight former presidents of Supreme Court Bar Association (SCBA), including Abid Hassan Minto, Muhammad Akram Sheikh, Hamid Khan, Qazi Muhammad Anwar, Muneer A Malik, Abid Zuberi, Ali Ahmed Kurd, and AmanUllah Kinrani, on Friday, filed a constitutional petition and cited federation through Secretary, Ministry of Law and Justice, Judicial Commission of Pakistan, Special Parliamentary Committee, Election Commission of Pakistan (ECP), Chief Election Commissioner and Members of the ECP, Speaker National Assembly and Chairman Senate as respondents.
The petitioners demanded that in alternate the apex court declare sections 7, 14, 17 and 21 of the 26th Amendment to be ultra vires to the Constitution, ab-initio void, against the fundamental rights and contrary to the principles of Independence of judiciary, federalism and separation of powers or to read down the same to bring them in conformity with the salient features of the Constitution
Until decision on 26th Amendment: Justice Mansoor urges CJP to put off JCP meeting
They also prayed the Court to suspend the operations of the impugned amendments made in the Constitution to the extent of Articles 175A, 191A, 202A and 209 through sections 7, 14, 17 and 21 of the Act, and all subsequent acts there under especially the formation and working of Committee towards the appointment of judges of the High Courts and Supreme Court and decisions thereon may be stayed till the final decision of the instant petition.
They submitted that 26th Amendment Act has been passed in a constitutionally defective manner, and pointed out that under Article 59 of the Constitution, each provincial assembly is entitled to elect 23 members in the Senate. However, the representation of the KPK in the Senate was not complete and as such one of the federating units could not fully participate in representing the interests of a province in a matter as grave as amending the charter of the federation.
They maintained that 26th Constitutional Amendment makes significant institutional changes in the structure and functioning of Pakistan’s judicial system, particularly with respect to the Supreme Court and High Courts. These changes bring an extraordinary level of political influence over the process of judicial appointments and the judiciary’s own administration.
The petitioners contended that the Judicial Commission of Pakistan (JCP) under Article 175A (2) of the Constitution, nominates judges for the Supreme Court and High Courts for appointment. Before the 26th Amendment, the JCP comprised a majority of judges.
However, the amendment has changed the composition of the JCP to also include two members of the National Assembly, two members of the Senate and one woman or non-Muslim member, to be nominated by the Speaker of the National Assembly. The Law Minister, the Attorney General of Pakistan, and a representative of the Bar were already members of the JCP and remain so.
They stated that the impugned amendments in the JCP’s composition through Article 175A(3)(3A)(3B)(3C) (3D)(3e)(3f) (3G) and (4), 5(A)(B)(C)(D)(E) allows for direct political influence over it, and reduce the JCP’s judicial members to a minority.
In addition to nominating judges for appointment, the JCP has been given the power to determine and nominate “constitutional benches” within the Supreme Court and High Courts under Article 175A(3)(3A)(3B)(3C) (3D)(3e)(3f) (3G) and (4), 5(A)(B)(C)(D)(E) of the Amendment. These benches shall have exclusive jurisdiction over matters involving interpretation of the Constitution and enforcement of fundamental rights.
They stated that prior to the 26th Constitutional Amendment; the most senior judge of the Supreme Court was appointed the Chief Justice of Pakistan (CJP). The Executive or the Parliament had no say in this appointment.
The 26th Constitutional Amendment has amended the Constitution to give a “Special Parliamentary Committee” (SPC) under article 175A(3) of the amendment consisting of eight members of the National Assembly and four members of the Senate the power to nominate the CJP from among the three most senior Supreme Court judges.
That the amendments provide the Supreme Judicial Council (SJC) under Article 209 of the amendment – a judicial body responsible for recommending judges for removal – may recommend judges of the Supreme Court and High Courts for removal if it finds they “may be inefficient in the performance of the duties” of their office.
With respect to this, the 26th Constitutional Amendment under Article 209 of the amendment does not define “inefficiency”, nor does it establish a threshold or criteria for “inefficiency”. Earlier, the grounds for removal by the SJC were incapacity or misconduct.
Copyright Business Recorder, 2024