SCBA’s 8 ex-presidents move SC against 26th Amendment

ISLAMABAD: Eight former presidents of the Supreme Court Bar Association (SCBA) have challenged in the Supreme Court the 26th Constitutional Amendment with the prayer to declare it ab initio void and being in violation of the salient features of the Constitution.

Abid Hassan Minto, Muhammad Akram Sheikh, Hamid Khan, Qazi Muhammad Anwar, Muneer A Malik, Abid Zuberi, Ali Ahmed Kurd and Aman Ullah Kinrani have filed a joint petition in the apex court under Article 184(3) of the Constitution through advocates Sardar Latif Khosa, Shahbaz Khosa and Salahuddin Ahmed.

They have made Federation of Pakistan through the Ministry of Law and Justice secretary, Judicial Commission of Pakistan through its secretary, Supreme Court, Special Parliamentary Committee through its chairman, Parliament House, Election Commission of Pakistan (ECP) through its secretary, chief election commissioner and ECP members, National Assembly Speaker and Senate chairman as respondents.

The petitioners prayed the apex court that the petition may be allowed and in consequence whereof the titled petition may very graciously be placed before the Full Bench of the court for adjudication and announcement of an authoritative pronouncement to decide the issue for once and for all in the interest of justice.

They further prayed that the operations of the amendments to the Constitution to the extent of Articles 175A, 191A, 202A and 209 through sections 7, 14, 17 and 21 of the 26th Constitutional Amendment Act 2024 and all subsequent acts thereunder, especially the formation and working of committee to appoint judges of superior courts, and decisions under Article 175A of the Constitution may be stayed till final decision of the petition.

The petitioners also prayed the apex court to declare the 26th amendment as ab initio void and non est being in violation of the salient features of the Constitution with further praying that in the alternate, declare sections 7, 14, 17 and 21 of the 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 & separation of powers or to read down the same to bring them in conformity with the salient features of the Constitution.

The petitioners submitted that the amendment seeks to politicise the judiciary by altering the process of judicial appointments, transgressing on the judicial power to form benches of the superior courts, forming self-serving politically dominated constitutional benches, and undermining the principle of seniority.

“This threatens public trust and confidence in access to an independent and impartial judiciary and the rule of law,” the petitioners contended.

They questioned as to whether the provisions of the newly enacted Article 191-A do not affect the jurisdiction of the Full Court of the Supreme Court to hear this lis and when the ouster provisions of Article 191-A are read with the scheme of hearings by benches and a full court provided for in Articles 203-J(2)(c) and (d)?

They further questioned as to whether a hearing to the challenges of the 26th Constitutional Amendment by a Full Court would enhance the legitimacy and credibility of any decision by the apex court especially in light of the charged political divide in relation to the said amendment?

“Whether the very purpose of legislature in a constitutional polity is to ensure that laws are passed by a body of representatives only after due debate, consultation and joint deliberation allowing the collective wisdom of representatives to come forward,” the petitioners further questioned.

The former SCBA presidents contended that the 26th amendment had been passed in a constitutionally defective manner, adding that under Article 59 of the Constitution, each provincial assembly is entitled to elect 23 members in the Senate; however, the representation of the KP 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. “That the Act in issue and the impugned amendments are an attempt to subjugate the judiciary and bring it under the control of the executive, betraying fundamental principles of the rule of law, separation of powers, and the independence of the judiciary,” the petitioners submitted.

They contended that the proposed bill was in complete violation of the Objective Resolution, the first constitutional document in the history of Pakistan which was passed in March 1949. It has been held as ‘grundnorm’ of the Constitution of Pakistan by the Supreme Court of Pakistan in Asma Jilani’s case (PLD 1972 SC 139).