The Lahore High Court Bar Association (LHCBA) Saturday challenged the 26th Constitutional Amendment in the Supreme Court.
The petition was moved through LHCBA's counsel, senior lawyer Advocate Hamid Khan. Hamid Khan is a senior leader of the Pakistan Tehreek-e-Insaf (PTI) and heads the Professional Group of lawyers, which lost the Supreme Court Bar Association of Pakistan (SCBAP) elections - including its President's office.
The association has requested the top court to hold the 26th Constitutional Amendment as ultra vires of the Constitution and declare it void in its entirety.
It further urged the Supreme Court to declare Sections 7, 9, 10, 12, 13, 14, 16, 17, and 21 of the amendment as repugnant to Articles 8, 9, 104, 175 and 175-A of the Constitution.
It further urged the top court to restore the original version of the Constitution and restrain the respondents from giving effect to provisions of the 26th Constitutional Amendment during the pendency of the case.
The LHCBA named the Federation of Pakistan, the Judicial Commission of Pakistan (JCP), the Special Parliamentary Committee of the National Assembly and the Senate, the Speaker of the National Assembly, the Chairman of the Senate, and the President of Pakistan as respondents.
The petition contends that the independence of the judiciary, federal form of governance and parliamentary democracy blended with Islamic principles were salient features of the Constitution.
It stated that there was no cavil to the proposition that the presence of [de facto] as well as [de jure] independence of the judiciary allows the triggering of constitutional protections.
It contended that the top court's opinion on Article 63-A (defection clause) came under advisory jurisdiction and it still exists until overruled through another advisory opinion given on the presidential reference.
The association argued that the opinion given by the top court in an advisory jurisdiction cannot be changed in a review jurisdiction.
"In light of the above constitutional and legal position given in the advisory opinion of the Supreme Court on the afore-said Presidential Reference on two votes of Senators from BNP (Mengal) and five votes of members of the National Assembly belonging to Pakistan Tehreek-e-Insaf (PTI)/Sunni Ittehad Council (SIC), cast in favour of the 26th Amendment were to be excluded in the light of the advisory opinion of the Supreme Court from the count of votes cast in favour of the purported 26th Amendment," the petition stated.
"If the said votes are excluded from the count of votes cast in favour [of] the purported 26th Amendment was never validly passed, it was unconstitutional, as there was no two-third majority of the total membership of either the Senate or the National Assembly of Pakistan, to pass the said 26th Amendment."
They went on to add that the salient feature of ensuring the complete independence of judiciary is a self-executing guarantee against any possible misuse of power to amend the Constitution or to change the social contract of the citizens of Pakistan to erode any of its core norms. In fact, the Constitution does not recognise victories in parliamentary elections or the impositions of martial law as granting the executive or the legislature the licence to commit a Constitutional [coup d'etat].
"[De jure] guarantees regarding [the] independence of the judiciary do not operate post-appointment but are present from the very moment a person is being considered for appointment as a member of the judiciary," they contended.
"The rationale behind the extension of this insulation throughout the process is both straightforward and logical."
"It is the undisputed duty of judges of the superior courts to preserve, protect and defend the Constitution," they argued, adding, "To safeguard the integrity of the Constitution, the judicial appointment process must, at all times, also be independent and free from executive or legislative interference."
"The Commission, therefore, forms an integral part of realising the independence of the judiciary. It is also for this reason that consultative primacy must be given to members of the judiciary in the matter of appointment of judges to the superior courts."
"The last word in such a sensitive subject must always belong to the judiciary, and any rejection of its advice, be it by the executive or legislators, goes to the heart of the independence of the judiciary."
"In respect of the reconstituted Commission, with the reduction of judicial members or members appointed by judicial members down to four coupled with the increase of non-judicial members from three to seven, a political opportunity to influence the direction and ethos of the judiciary as a whole has been granted to the non-judicial members of the Commission."
They argued: "This is further exacerbated by the fact that the government of the day has been empowered to directly appoint five members to the Commission."
"Where the executive or legislators appoint judges, they are likely to be influenced by their political leanings just as they are in countless other aspects of their jobs," the petition read, hinting that judicial appointments may be made per political leanings in the future.
"It does not behove reason that individuals that tend to seek elected office to influence policy are unlikely to view judicial selection in an apolitical fashion."
Taking a more blunt stance, the association argued: "Instead, non-judicial members are more than likely to view their appointee as a legacy choice and potential ally in policymaking."
"Where legislators pick the chief justice or other judges, it can be expected that the appointees will be subservient to their appointers," the LHCBA asserted.
The association further submitted that the entire 26th Constitutional Amendment Act was borne out of mala fide and ill-will towards the superior judiciary and is, therefore, not in harmony with the principle of proportionality of actions.
"If a legislature deliberately and repeatedly embarks upon a venture to nullify judicial verdicts in an unlawful manner, trample constitutional checks and balances and violates the law in order to serve its own interests, as has been done through the 26th Amendment Act, no bona fides can be attributed to the same."
Since the entire 26th Amendment Act is a product of mala fides, ill-will and retribution, the LHCBA argued that it has to be struck down, notwithstanding any ouster clause to the contrary.
They further submitted that their petition can only be adjudicated by the Supreme Court on the regular side and is not a matter that can be adjudicated by a Constitutional Bench formed under the newly inserted Article 191-A.
The petition further contended that the Practice and Procedure Act is still in the field, and its Section 4 mandates that where the interpretation of a constitutional provision is involved, the Committee must constitute a bench of no less than five judges of the Supreme Court on the regular side and not the constitutional benches.
"The formation of benches including the Constitutional Benches was part of the judicial power of state exercisable only by the judicial branch and thus the nomination of a Constitutional bench and appointment of its judges was unconstitutional being a violation of Articles 175 and 176 of the Constitution which constituted one integral and indivisible Supreme Court and the Chief Justice of Pakistan being its institutional head could not be by-passed and excluded in the said process."
The LHCBA contended that the power of nominating the Chief Justice of Pakistan through a Special Parliamentary Committee would politicise the nomination and start an unhealthy lobbying process that would undermine the independence of the judiciary.
It is pertinent to mention here that Khyber Pakhtunkhwa (KP) Chief Minister Ali Amin Gandapur released a grant of Rs30 million for the LHCBA before the election of SCBAP.