The Sindh Bar Council’s vice chairman on Wednesday challenged the 26th Constitution Amendment Act 2024 in the Supreme Court.
SBC vice chairman Kashif Hanif, members Naeem Qureshi, Syed Haider Imam Rizvi and others submitted in the petition that being as practising lawyers they have been aggrieved by the promulgation of the Constitution (26th Amendment) Act 2024 as it directly interferences with the independence of the judiciary and the principle of the separation of powers.
They submitted that the provisions and manner of implementation of the 26th Amendment have enabled bench constitution, selection and nominations/appointments premised on political and arbitrary considerations which in turn has resulted in undermining the court’s ability to render its functions independently.
They said that impugned amendment has a direct effect on the practice of the petitioners as the confidence in the judicial system has been significantly undermined in the public, including their clients and workings of the judiciary are being influenced in a manner to favour political considerations instead of the ends of justice, resulting in the petitioners also having to cater for undue considerations in representing their clients.
They submitted that pursuant to the Act a special parliamentary committee was constituted to nominate a new Chief Justice of Pakistan in view of the impending retirement of the outgoing Chief Justice of Pakistan on October 25, 2024 and the committee with a majority of 8 to 1, was pleased to nominate the third-most senior judge of the court as the Chief Justice of Pakistan.
They said that no reasons were given for not appointing the senior-most judge of the Supreme Court in line with the well-settled principle of preference to seniority that is also otherwise acknowledged by the Constitution even after promulgation of the Constitution (26th Amendment) Act 2024. The nomination was sent to the Prime Minister and forwarded to the President and the appointment was notified on 23 October.
They submitted that a meeting of the Judicial Commission of Pakistan was held on November 5, 2024 and one of the members objected that there was no most senior member of constitutional benches; however, the majority rejected the objection.
They said that as per the statement of the Pakistan Bar Council’s nominee to the commission, it was initially proposed by the chairman that all judges of the Supreme Court remain empowered to interpret, apply and enforce the Constitution by selecting them all for the constitutional benches, but the proposal was rejected by the majority present in the commission.
They said that by a majority of seven to five, the commission appointed seven judges to the constitutional bench while no reasons were prescribed for the selection of the seven judges or for not selecting any of the remaining judges of the court.
They submitted that no criteria or other basis of selection was settled and no reasons whatsoever were given in violation of the settled principles for discharge of duty under the constitution and exercise of discretion, if any, that vested in the Commission.
They said that articles 175, 176, 182, 183, 184, 185, 186, 186A, 187, 188, 189, 190, 191, 192, 199, 201, 202, and 203 of the constitution continue to reinforce the fundamental norm that the jurisdiction is that of the Supreme Court – i.e. the whole court composed of each and every judge of the court; any and all judges, benches or divisions of the court exercise the jurisdiction of the court – no bench has a jurisdiction independent of the court of which it is a part.
They submitted that the three-member committee by a majority of two members under the practice and Procedure Act 2024 on October 31, 2024 had determined that petitions challenging the 26th amendment be placed before the full court, even prior to formation of the constitutional bench of the court and the decision of the committee ought to be implemented.
The court was requested to call record and proceedings of the special parliamentary committee and set aside its decision with regard to appointment of third most senior judge of the SC as chief justice of Pakistan and strike down the sections 7,9,13,14,17 and 21 of the Act ultra vires the constitution and being violative of independence of the judiciary. They also requested the court to direct the president of Pakistan to appoint the most senior judge of the SC as the chief justice of Pakistan.