The Sindh High Court on Wednesday issued notices to the Sindh Assembly speaker and others on a petition challenging the promulgation of ‘The Constitutional Benches of High Court of Sindh (Practice and Procedure) Ordinance, 2025’.
Petitioners Ali Tahir and others submitted that the impugned ordinance was a significant intervention in the administration and adjudication of constitutional matters within the SHC by the executive branch.
They said the ordinance purports to regulate the constitution, jurisdiction, administration, and procedure of the constitutional benches established under Article 202A of the Constitution. They also submitted that although Article 202-A(6), added after the 27th Amendment, allows the provincial assembly of Sindh to regulate how the constitutional benches of the high court work, the way this ordinance has been issued raises immediate concerns.
They said the clause uses the phrase “Act of the Provincial Assembly,” and while the Constitution’s definitions do include an ordinance within that category, the troubling part is that the ordinance was not issued by the governor at all. They said that instead, it was pushed through by an acting governor in clear haste, almost as if there was a race to show how quickly control over the judiciary could be tightened.
The petitioners said that one is left to ask what possible urgency existed that the provincial assembly could not meet, debate, and pass this measure through normal legislative process. They said any step that touches the judiciary should be taken with serious reflection, broad consultation, and transparency; however, in this case there was no input from the Bar Council, no engagement with civil society, and it appears there was not even a conversation with the judiciary itself.
They submitted that the acting governor, appointed only to handle routine day-to-day matters for a short period, suddenly signed and enforced an ordinance of major constitutional consequence.
“They submitted that the promulgation of the ordinance violates Article 128 of the Constitution which strictly limits the governor’s power to issue ordinances to situations where both the assembly is not in session and where circumstances exist which render it necessary to take immediate action.”
They said that in the present case there was no pressing emergency that warranted bypassing the legislative process, especially when the matter relates to a judicial reform. They said the issuance of the impugned enactment, bypassing Parliament and the due legislative process, constitutes a violation of the rule of law and parliamentary sovereignty. They further stated that no emergent situation existed to justify the bypassing of Parliament in promulgating the impugned enactment.
They said the ordinance, by providing that “every application, cause, matter or petition filed before the High Court falling within Article 199, shall be heard and decided exclusively by the Constitutional Benches, purports to oust the jurisdiction of all other benches for all Article 199 matters.
They submitted that the imposition of a “first in, first out” rule for the listing and hearing of cases, and the requirement that urgent applications be fixed within fourteen days, constitute a direct interference with judicial discretion in case management.
They submitted that the ordinance empowers the head of the constitutional benches to make rules for the practice and procedure of the benches; however, Article 202A(6) provides that the high court “may make rules regulating the practice and procedure of the Constitutional Benches,” subject to an Act of the Provincial Assembly.
The petitioners said that the power to make rules is thus vested in the high court, not in an individual judge or office created by subordinate legislation.
They submitted that Article 6 of the ordinance declares that refusal by a judge to accept nomination to the constitutional bench will prima facie amount to misconduct is beyond the legislative competence of the provincial assembly and consequently the governor, so it is also ultra vires Article 202-A and 209 of the Constitution.
The court was requested to declare that the constitutional benches ordinance 2025 unconstitutional and strike down the ordinance in its entirety, or in the alternative, strike down the provisions that transgress constitutional limits, distort the scheme of Article 202A, or create mechanisms not permitted by the Constitution.
A division bench headed by Justice Adnan Iqbal Chaudhry observed that the point raised require consideration and issued notices to the secretary law, speaker of the Sindh Assembly and others and called their comments on November 27.