ISLAMABAD: Another petition challenging the newly promulgated ordinance amending the Supreme Court (Practice and Procedure) Act 2023 was filed in the Supreme Court on Wednesday praying to strike down the ordinance for being violation of Article 89 of Constitution.
Afrasiab Khattak, Human Rights Commission of Pakistan (HRCP) former chairperson, and senior leader of the National Democratic Movement, a registered political party along with Farieha Aziz, have filed a petition in the Supreme Court under Article 184(3) of the Constitution.
Filed through advocate Khwaja Ahmad Hosain, they have made the President of Pakistan through the secretary to president and Federation of Pakistan through the ministry of law and justice secretary as respondents.
The petitioners prayed the apex court to declare that the ordinance violates Article 89 of the Constitution and that the Section 2 of the ordinance regarding constitution of the committee violates fundamental rights and is ultra vires.
Similarly, they prayed court to restore the status quo ante as an interim measure by suspending the office order and directing that during the pendency of this petition the committee entrusted with constitution of benches and fixation of cases comprises the Chief Justice of Pakistan and the two most senior judges of the Supreme Court.
Alternatively, pass an observation that the CJP is expected to maintain the constitution of the committee as it existed prior to the passing of the ordinance during the pendency of this petition.
The petitioners challenged the ordinance on two grounds. First, the requirements under the Constitution which are necessary to promulgate ordinances have not been met and therefore the ordinance violates Article 89, second, without prejudice to the challenge to the entire ordinance on the basis of Article 89, Section 2 of the ordinance violates the independence of the judiciary and should be struck
down.
The petitioners submitted that in the event, that Section 2 of the ordinance is given effect through a statute passed by Parliament during the pendency of this petition, the references to the section may be read as references to the similar provision in the relevant Act.
Raising question of public importance with reference to enforcement of the fundamental rights conferred by the Constitution, the petitioners submitted that the ordinance strikes directly at judicial independence.
They questioned as to whether the ordinance constitutes interference by the government in the independence of the judiciary, whether the Section 2 is person specific directly aimed at ousting one specific judge and granting controlling powers to the CJP in respect of certain matters which relate to the practice and procedure of the court, and whether such legislation undermines judicial independence since it enables the government or the legislature to punish or reward a judge by altering the composition of the committee or taking away powers from the panel members.
They submitted that the more recent minutes of the committee reflect that the chief justice has been in the minority as far as fixation of certain cases is concerned.
They further submitted that the minutes of the meeting convened on July 18, 2024, reflect: (i) Review petitions had been filed against the recent judgement in the reserved seats case i.e., Sunni Ittehad Council and another vs. Election Commission of Pakistan and others.
They said that the chief justice was of the view that the review petitions should be fixed in the vacations, however, Justice Mansoor Ali Shah and Justice Munib Akhtar disagreed.
The minutes note, “The Committee by majority (HCJ dissenting) decided to fix this matter after the summer vacations when all the 13 Hon’ble Judges who heard the appeals are available at the Principal Seat.”
The petitioners submitted that the meetings also reflect a disagreement between the Committee regarding the fixation of review CRP No.197/2022 in C.P. No.2/2022 etc. (63-A judgment), adding that the chief justice issued a separate note and stated, the petition pertained to the interpretation of Articles 63 and 63A of the Constitution.
The constitutional and legal ramifications should have been decided…. Therefore, for the same reasons as mentioned above…and considering that both the said two judges are available it should be fixed for hearing in the next ten days. “Instead, the Committee by majority deferred the matter to be taken up after summer vacations,” the petitioners submitted.
It is in this backdrop that the Section 2 must be examined, the petitioners submitted, adding that as far as fixation of both the reserved seats judgement review and 63-A judgment review, the chief justice has been in the minority.
They maintained that the Section 2 defeats the purpose of the 2023 Act which has been upheld by the Full Court, adding that the professed rationale for the Section is the unavailability of the third senior most judge.
“In such a situation, the appropriate amendment would have been that if the third senior most judge is not available, as a temporary measure and for the duration of such unavailability, the chief justice can appoint a nominee and there was no need in such case to remove the third senior most judge altogether.
The petitioners submitted that the judge was a target because of his decisions, adding that enabling the government or the legislature to remove a specific judge because of adverse decision making as far as case fixation or bench formation is concerned is an interference in judicial independence.
They contended that Article 89(1) of the Constitution provides, “The President may, except when the [Senate or] National Assembly is in session, if satisfied that circumstances exist which render it necessary to take immediate action, make and promulgate an Ordinance as the circumstances may require.”
“For the President to be able to exercise this exceptional power, it must be shown that: (i) both Houses are not in session; and (ii) such circumstances exist which render it necessary to take immediate action,” the petitioners submitted.
They further submitted that the Section 2 violates Article 175(3) of the Constitution which commands that the judiciary shall be separated from the executive.
The Section 2 is a blatant attempt by the executive to encroach in the internal workings of the judiciary and to undermine judicial independence, and if the Section 2 is validated by the apex court, it would be tantamount to stating that the executive has the right to dictate which judges will sit on the Committee, the petitioners submitted, adding that it would mean the executive is playing the role of “master of the roster” by adding and removing judges from the Committee.
“An attack on judicial independence is an attack on access to justice and violates inter alia Article 4, 9, 10, 10-A and 25 of the Constitution and it impacts access to justice and therefore fundamental rights”, the petitioners submitted.