A few members from the top body of lawyers in the country approached the Supreme Court of Pakistan on Monday, seeking a restraining order against the government's proposed amendments to the Constitution, dubbed the 'Judicial Package'.
A petition in this regard was filed by six members of the Pakistan Bar Council (PBC), including Abid Shahid Zuberi, Shafqat Mehmood Chauhan, Shahab Sarki, Chaudhary Ishtiaq Ahmed Khan, Tahir Faraz Abbasi and Munir Ahmed Kakar.
In their petition, moved under Article 184(3), they termed the proposed constitutional amendment as having the intention of violating the independence of the judiciary.
They prayed that the separation of powers and independence of the judiciary and its powers and functions to enforce the fundamental rights be declared sacrosanct under the Constitution and beyond the power and competence of the Parliament to withdraw, interfere or tamper with in any manner.
The lawyers further urged the court that the proposed amendments sought to be introduced through a bill be declared ultra vires to the basic scheme of the Constitution, principle of separation of powers, independence of the judiciary and fundamental rights.
The group further urged the top court to restrain the federal government from tabling the bill.
It is also urged in the petition that the court may be pleased to suspend the operation of the proposed amendments sought to be introduced through the bill and further restrain the same from being assented to [if] passed by both houses.
The lawyers further prayed that the top court set aside the proposed amendments sought to be introduced through the Bill.
The petition contended that the proposed bill completely violates all the principles determined by the top court in different cases, adding that it is an attempt to destroy the independent judiciary.
"No amendment under Articles 238 and 239 of the Constitution can be enacted that destroys or annihilates this fundamental feature," the petition stated, adding that such an amendment would contravene the principle of the trichotomy of powers established by the 1973 Constitution and violate the doctrine of separation of powers.
"Clauses (5) and (6) of Article 239, borrowed from the Indian legal framework, were never part of the original Constitutional document.
Similar amendments to Article 368 of the Indian Constitution were declared unconstitutional by the Indian judiciary. Even otherwise, clauses (5) and (6) interpreted to destroy the principles of independence of judiciary, access to justice and fundamental rights guaranteed to citizens of Pakistan."
The petition further contended that it is settled law under the constitutional jurisprudence that independence of the judiciary constitutes a basic and salient feature of the Constitution. "Therefore, even the Parliament cannot amend the constitution so as to undo salient features of the Constitution and render a pillar or organ of the state weak independent."
It added that the selection process for judges should be free from any political bias or interference, whereas Section 13 of the proposed amendment has introduced a mechanism for the appointment of judges of the high courts and the Federal Shariat Court, which is in complete violation of the independence of the judiciary and separation of powers.
"The inclusion of the members of the Senate and the National Assembly in the commission for the appointment of the judges is against the principle of separation of power as members of the executive and the legislative branch should not have any involvement in the process of appointment of judges as the same would taint the entire process of judicial appointments of political bias save as provided in the unamended Article 175-A of the Constitution."
It further added that the representation of the members of the Supreme Court in the Supreme Judicial Council has been reduced to just one member and through the proposed amendments the Supreme Judicial Council is now entirely under the control of and subservient to members of the executive and the Federal Constitutional Court who will be able to interfere in the appointment process of judges in pursuance of their own political interest.
"The amendments introduced in the process of judicial appointments are person-specific and therefore in violation of the fundamental rights enshrined under the Constitution," the six lawyers claimed, adding, "That such politically motivated legislation which is in sheer violation of the basic structure of the Constitution is entirely unprecedented in the constitutional history of Pakistan, whereas, such draconian and unconstitutional laws were not passed even during periods of Martial Law in this country."
"The evaluation performance of the judges of High Courts by members of the legislature or the executive is also in complete violation of separation of powers."
Furthermore, it argued that no member of the legislature or the executive has the skills and legal acumen to evaluate the performance of any judge of the Federal Shariat Court, high courts, or the Supreme Court. Furthermore, the transfer of judges of High Courts without their consent will destroy the security of their office.
"The increased age of retirement for members of the Federal Constitutional Courts and the amendment in Article 179 of the Constitution attributes redundancy to the case of Al-Jehad Trust Case and the Asad Ali Case and the Sindh High Court Bar Association Case and is also unconstitutional. Moreover, the difference in the age of retirement between a Judge of the Supreme Court and a Judge of the Federal Constitutional Court is also against the basic principles of independence of judiciary, access to justice and fundamental rights."
"Moreover, the sacrosanct office of the Chief Justice of Pakistan has also been made subservient to the office of the Chief Justice of the Federal Constitutional Court. That the creation of an entirely separate Federal Constitutional Court which is to run parallel to an already existing Supreme Court will only lead to a complete paralysis of the judicial system."
The petition argued that the Parliament cannot divest the Supreme Court and High Courts of their judicial powers and vest them in another court, such as the proposed Federal Constitutional Court.
"The judicial power vested in the Supreme Court and High Courts is a fundamental and salient feature of the Constitution and cannot be conferred upon any other body. Any attempt to transfer this authority would violate the basic structure of the Constitution. Article 175 explicitly provides for the establishment of the Supreme Court, high courts, and such other courts as may be established by law, referring to subordinate courts under Article 203," they referred.
"The proposed amendments to the Constitution, particularly those concerning the courts, including the Supreme Court of Pakistan, fundamentally undermine the status of these courts as constitutional courts."
The petition argued that judicial powers conferred upon courts by the Constitution cannot be divested or reallocated. Any amendment that strips the Supreme Court and high courts of their judicial powers and seeks to vest such authority in any other court, including the proposed Federal Constitutional Court, is unconstitutional as it would destroy the principle of separation of powers.
It is further stated in the petition that any interpretation of these proposed amendments must be consistent with the Constitution's provisions that guarantee fundamental rights, judicial independence, and democratic principles, harmonised with Islamic values.
"Any provision in the proposed amendments that negates the independence of the judiciary is inherently unconstitutional. The higher constitutional right to preserve judicial independence must prevail over any proposed amendments, including those seeking to establish a Federal Constitutional Court."