SHC directs federal govt to file comments on plea against 26th Amendment

The Sindh High Court (SHC) on Monday once again directed the federal government and others to file comments on petitions challenging vires of the 26th Constitutional Amendment with regard to the chief justice and superior courts judges’ appointment criteria, constitution of constitutional benches and curtailment of suo motu powers of the apex court.

A division bench of the high court headed by Chief Justice Mohammad Shafi Siddiqui directed the federal law officer to file a written response to the petition including reply on merits and legal ground regarding the jurisdiction of the constitutional high court.

An additional attorney general submitted that the subject matters should be heard by the constitutional benches of the high court. He submitted that the cabinet division had filed comments on the petition stating that the matter related to law and justice and the parliamentary affairs division.

He submitted that the petitioners were not aggrieved from any action or order of the cabinet division nor the cabinet division was in position to grant any relief to the petitioner in term of stated grievance. He also sought time to file comments on behalf of the remaining respondents.

The high court observed that it also perused the prayer clauses in the petitions and was of tentative view that since it sought a declaration to the extent of such amendment, it would fall under the Article 199 (1) (a) (ii) of the Constitution subject to further assistance by the federal and provincial law officers.

The SHC observed that since the court was hearing objections from the respondents’ side, they had been directed to file comments including merits and jurisdiction of the court on the next date of hearing.

It is pertinent to mention that the SHC had earlier observed on a previous hearing that there was no bar on hearing these petitions and at first instance, the federal government may file comments on petitions as ordered by the court.

The petitioners, who included Mohammad Ashraf Sammo, Malir Bar Association President Nasir Raza, and others, had submitted that the 26th Amendment violated the principles of separation of power, judicial independence and rule of the law.

The counsel for the petitioners had earlier submitted in the petitions that the impugned amendment had been amended in such a way that a litigant such as federation / province was seen to pick and choose benches for their own cause and for their own litigation and this had ignored a universal principle that justice should not only be done but seen to have been done. The counsel argued that it had been shown to the public that the parliamentarians had conquered the judiciary by empowering their decisive strength in the judicial process and one of such process was the formation of the judicial commission.

The counsel argued that individuals may or may not matter but the matter of concern was the executives’ invasion into the regime of independent judiciary. The counsel submitted that one such fundamental right, which was the independence of judiciary, had been compromised. They said that the preamble of the Constitution also guaranteed the safeguard of the fundamental rights.