Senior politician Afrasiab Khattak and Digital Rights Activist Farieha Aziz Wednesday jointly filed a petition in the Supreme Court challenging the Practice and Procedure Amendment Ordinance.
The petitioners argued that the requirements listed under the Constitution for promulgating ordinances were not met in promulgating this ordinance and that Section 2 of the ordinance violates the independence of the judiciary.
Their petition has been filed under Article 184(3) and urges the top court to strike down the ordinance by declaring it violative of Article 89 of the Constitution.
The petition further requested the top court to declare that Section 2 of the ordinance regarding the constitution of the three-member bench-fixing committee (previously, the committee comprised the chief justice and the two senior-most judges of the top court. However, the ordinance amended that to the chief justice, the senior-most judge of the court and any other judge to be nominated by the chief justice of the court) violates fundamental rights.
The petitioners urged the court to suspend the ordinance until a decision is made on their application.
“This petition raises a question of public importance with reference to enforcement of the fundamental rights conferred by the Constitution of the Islamic Republic of Pakistan, 1973 (the “Constitution”).”
It argued: "Any interference in judicial independence is tantamount to a denial of access to justice to citizens."
“By stating that the majority of the committee will comprise of the chief justice and his nominee, the 'one-man show' has effectively been reinstated,” it asserted, adding, “The impugned section also states that the chief justice may nominate a judge on the committee from 'time to time'. This effectively means that the chief justice can add and/or replace judges on the committee as and when he wishes. The very purpose of upholding the 2023 act was that it democratised decision-making and prevented the chief justice from acting completely at his discretion. The impugned section defeats the purpose of the 2023 Act, which has been upheld by the full court.”
“The professed rationale for the impugned section is the unavailability of the third senior-most judge. In such a situation, the appropriate amendment would have been that if the third senior-most judge is not available, as a temporary measure and for the duration of such unavailability, the chief justice can appoint a nominee. There was no need in such case to remove the third senior-most judge altogether.”
The petitioners argued that the judge was a target because of his decisions. "Enabling the government or the legislature to remove a specific judge because of adverse decision-making, as far as case fixation or bench formation is concerned, is an interference in judicial independence.”
“In the case of the 2023 Act, Parliament created a committee of the chief justice and the two senior-most judges to constitute benches. In the case of the impugned section, there is a specific and obvious design to exclude one specific judge and grant controlling power to another, the Chief Justice of Pakistan. It is a blatant interference in judicial independence.
"The impugned section is a blatant attempt by the executive to encroach on the internal workings of the judiciary and to undermine judicial independence. If the impugned section is validated by this court, it would be tantamount to stating that the executive has the right to dictate which judges will sit on the committee. It would mean the executive is playing the role of 'master of the roster' by adding and removing judges from the committee.”
The petitioners urged the court to suspend the ordinance until a decision is made on their application.