PTI leader challenges change to SC Practice & Procedure Act in SHC

The Pakistan Tehreek-e-Insaf (PTI) challenged the Supreme Court (Practice & Procedure) Amendment Ordinance in the Sindh High Court (SHC) on Monday. Filing a petition with the high court, PTI Sindh President Haleem Adil Sheikh said that the impugned ordinance was promulgated to restore the exclusive powers of the chief justice of Pakistan (CJP) to constitute benches and replace a previous law passed by the parliament.

Sheikh’s counsel Ali Tahir said that under the ordinance, the government amended Section 2 of the SC (Practice & Procedure) Act (SCPPA) and replaced the next most senior judge after the senior puisne judge with a judge of the SC to be nominated by the CJP in a committee responsible for fixing cases and the composition of benches in the SC’s jurisdiction under Article 184(3) of the constitution, terming the move arbitrary and in violation of the fundamental rights guaranteed under the constitution.

Tahir said the ordinance itself was a violation of the constitutional provision, as both houses are in session, and Article 89 limits the president’s power to issue an ordinance only when both houses are not in session and such circumstances exist that render it necessary to take immediate action.

He said that there was no pressing emergency that warranted bypassing the legislative process of the parliament, especially when the matter relates to judicial reform previously enacted by a parliamentary statute.

He added that the impugned ordinance subverted the authority of the parliament, undermining its legislative supremacy, and conflicted with the doctrine of the separation of powers, a cornerstone of Pakistan’s constitutional framework.

He also said that there was no emergent situation to justify the bypassing of the parliament in promulgating the impugned enactment, and the impugned ordinance reverted the near exclusive powers of the CJP to constitute benches that had been curtailed by the SCPPA 2023 to introduce more transparency and collective decision making.

The counsel said the government could have convened an emergency session to debate on the amendments but did not do so, which suggests an attempt to circumvent the parliamentary process.

He referred to the recent prorogued joint session of the parliament, saying that the respondent had promulgated the ordinance after it seemed that it did not have the required numbers in the parliament.

He said that by concentrating powers in the hands of the CJP to unilaterally decide the composition of the benches, the impugned enactment compromises the principle of judicial independence, leading to arbitrary decision making and undermining the right of a fair trial. He requested the court to declare the SC (Practice & Procedure) Amendment Ordinance 2024 unconstitutional and ultra vires to the constitution.