ISLAMABAD:
The Supreme Court has refused to entertain the Lahore Bar Association’s (LBA) petition challenging the 27th constitutional amendment and the subsequent transfer of three judges from the Islamabad High Court (IHC) to different high courts.
It is learned that the Supreme Court Registrar’s office returned the petition to the Advocate-on-Record (AOR) without issuing a written order. The petition was filed through senior advocate Hamid Khan.
Interestingly, none of the bona fide stakeholders have challenged the 27th Amendment before the Federal Constitutional Court (FCC). Lawyers who oppose the 27th Amendment still look to the Supreme Court to ensure the independence of the judiciary.
However, legal experts question whether it is reasonable to expect the Supreme Court to take up a petition against the amendment when CJP Yahya Afridi himself is considered to be a beneficiary of the 27th Amendment.
A senior lawyer said that even if the Supreme Court no longer had jurisdiction under Article 184(1). 3, it remains the registrar’s obligation to inform the petitioner in writing. “It’s like returning a complaint in a civil suit. It has to be done through a written order,” he added.
It is also learned that the LBA will soon file an appeal against the registrar’s office’s refusal to entertain the petition.
Before the 27th Amendment, if the SC Registrar’s office returned a petition, objections were forwarded through a written order that could be challenged through an appeal in chambers. In the instant case, however, the petition was returned without a written order.
In its petition, the LBA argued that the judicial powers of the Supreme Court could not be taken away by another branch of government, namely Parliament. It argued that such a change undermined the constitution and destroyed the independence of the judiciary.
“Thus, the said Constitution (27th Amendment) is unconstitutional and void and the Supreme Court, which is an indivisible judicial institution at the apex, cannot be deprived of its powers and jurisdiction,” the petition said.
The petition further argued that the independence of the judiciary – including the appointment, transfer and removal of superior court judges – was part of the basic features of the constitution and therefore could not be changed.
It argued that Parliament, being a constituent rather than a constituent body, lacked the authority to amend Article 200 in a manner that allegedly undermined judicial independence and made the judiciary subservient to the executive.
The petition also maintained that despite Article 239(6) and previous constitutional amendments that sought to remove judicial review, the superior courts retained the power to review constitutional amendments that violated the basic or salient features of the constitution.
It further argued that the newly created FCC could not itself hear challenges to the 27th Amendment because its own creation and jurisdiction were under challenge.
According to the petition, FCC judges favored the amendment and therefore could not rule on its constitutionality. The LBA also challenged the transfer of IHC judges under the amended Article 200, arguing that the transfers lacked disclosed reasons, criteria, transparency and demonstrable institutional necessity.
