Some 28 women lawyers from across Pakistan Monday challenged the 26th constitutional amendment in the Sureme Court. They further argued that the newly formed constitutional bench — created under the 26th constitutional amendment — could not hear their petition.
"Justice and fairness also demand that the instant challenge to the 26th Amendment, to ensure dispensation of justice and fair play, be heard by a full-court, and not just the constitutional bench, which has its genesis in the 26th Amendment, the very amendment under challenge," the petition stated.
The cohort of 28 women lawyers was led by Advocate Zainab Janjua and included Rida Hosain, Maryam Khan, Imaan Zainab Hazir Mazari, and Syeda Khushbakht Shah, among others. They requested the top court to hold an inquiry into the amendment and declare that the 26th Amendment was procedurally defective as parliamentarians cast their votes under duress and coercion and thus were unlawful.
The petitioners requested the court to strike down the 26th Amendment on the grounds that the requisite two-thirds majority was not lawfully obtained.
The top court was urged to declare that no constitutional amendment can lawfully be passed when one province does not have due representation in the Senate.
They further requested the top court to declare that no constitutional amendment can lawfully be passed until the top court's decision in the reserved seats case has been implemented, providing that each political party must get its rightful share of reserved seats.
It was further requested before the top court that Sections 7, 14, 17, and 21 of the 26th Amendment should be declared as abrogating, repealing and destroying the salient features of the Constitution.
The petition also requested the top court to set aside any action taken by the Respondents or any other person of authority in pursuance of the 26th Amendment. Under Article 184(3), the petition arrayed the federal and provincial governments as respondents.
"It is requested to constitute a full bench, comprising of all the justices of the Supreme Court, for dispensation of justice in the instant matter," the petition read.
The petition contended that there was evidence, including statements by political leaders, which lent credence to the claim that the two-thirds majority in Parliament — required to pass a constitutional amendment — was not lawfully obtained and that parliamentarians have not voluntarily and freely cast their vote. "This renders the entire 26th Amendment procedurally defective, and reinforces that it is liable to be struck down on procedural grounds."
"Our constitutional scheme envisages that each parliamentarian votes according to their conscience. When citizens cast their vote and elect a parliamentarian to represent them, this is a trust," the petition read.
"The parliamentarians represent the people, and it undermines the will of the people if the parliamentarians have been forced to vote against their conscience."
The petition further pointed out that it is a matter of record that Senate elections on vacant seats in Khyber Pakhtunkhwa have not taken place.
"One province has been denied its voice in the Senate, since one province did not have representation in the Senate when the 26th Amendment was passed," they argued, adding, "This undermines the conception of the federation, where each province has been accorded equal representation and, as a result, equal influence in the Senate."
"Without appropriate representation from one province, when passing a constitutional amendment that is going to have a huge impact on the entire country, tantamount to disregarding the will of the people of one province," they contended.
"A constitutional amendment cannot be considered as valid if one province has been denied its due representation as set out in the Constitution," they asserted.
The petition further stated that it is a matter of record that while the Parliament moved to vote on the constitutional amendment, the majority decision by the full court bench of the Supreme Court in reserved seats case had yet to be implemented.
"In fact, there have been statements on the record by representatives of the government that this decision is not binding."
They further suggested that such actions go against the spirit of democracy.
"This undermines the administration of justice, and it, essentially, means that women and members of minorities, who, under the Constitution are required to be in the National Assembly, have been blocked out."
This also means, the petition stated, that the people of Pakistan have not been duly represented in the National Assembly in accordance with their votes, as the reserved seats for women and minorities, under the Constitution, have been reserved in accordance with the votes cast for each political party contesting the elections.
"A constitutional amendment cannot be passed when an order of this Court is being defied, and women and the minorities, the marginalised sections of Pakistan, provided constitutional protection through representation in the National Assembly, have been denied access."
"Moreover, a political party, for whom the people cast their vote, and which thereby represents a large chunk of the population is being denied its constitutional share of seats in the assemblies," they argued, adding, "It undermines the will of the people if their votes are not reflected in the assemblies."
The petition contended that the 26th Amendment abrogates, repeals, and destroys the salient features of the Constitution as well as the commands contained in the Preamble.
The petition further stated that there are precedents where the top court has safeguarded the rights of judicial review over a constitutional amendment, and the present case merits that the court exercise its right of judicial review and strike down the 26th Amendment.