ISLAMABAD: The Supreme Court on Thursday refused to receive a joint constitutional petition of four judges of the Islamabad High Court (IHC) challenging the 27th Constitutional Amendment.
It was learnt that the office concerned of the apex court declined to receive the joint petition from the Advocate-on-Record (AOR), informing him that the 27th Amendment cannot be challenged in the Supreme Court.
The AOR was intimated that after the 27th Constitutional Amendment, the Federal Constitutional Court (FCC) established under it is now competent to deal with constitutional matters.
Four sitting IHC judges — Justice Mohsin Akhtar Kiyani, Justice Babar Sattar, Justice Sardar Ijaz Ishaq Khan and Justice Saman Rifat Imtiaz — had challenged the 27th Constitutional Amendment in the apex court under Articles 184 and 187 of the Constitution.
Filed through advocate Munir A Malik, the four IHC judges made the Federation of Pakistan through the Secretary Ministry of Law and Justice and the Federal Constitutional Court through its Registrar as respondents.
The four IHC judges questioned as to whether the 27th Amendment, in making changes to the machinery provisions in Part VII of the Constitution, has violated the process and equal protection of law provision of the Constitution, under Article 9, 10A and 25 of the Constitution.
They further questioned as to whether the appointment of the first Chief Justice of Federal Constitution Court is in violation of the principles of separation of power and independence of judiciary, as his appointment has been made by the president on the advice of prime minister, without consultation with the judiciary.
Similarly, they questioned as to whether the 27th Amendment, following the 26th Amendment, has altered the mechanism of appointment of judges to constitutional courts in such a manner that the judiciary no longer has primacy in the process, which is violation of the principle of separation of powers and independence of the judiciary.
The four judges prayed the apex court to declare that the changes made in Chapter VII of the Constitution by the 27th Amendment, particularly in sections 20, 21, 30, 33, 34, 41, 45, 48, and 49 of the 27th Amendment, are violative of the substantive provisions guaranteeing “due process” and “equal protection” of law, under Articles 9 and 25 of the Constitution.
They further prayed the apex court to declare that the 27th Amendment, particularly in sections 20, 21, 30, 33, 34, 41, 45, 48 and 49, is violative of the basic structure of the Constitution that mandates the independence of the judiciary and separation of powers, as is the 26th Amendment that takes away the primacy of the judiciary in the decision-making process for appointment and elevation of judges and grants the executive permanent control over such appointments.
The four judges also prayed the apex court to declare that the parliament is not vested with the powers under the provisions of the Constitution, including Articles 238 and 239 of the Constitution, to violate the basic structure of the 1973, for which the power does not vest with the representatives of the people, acting in self-interest, but with the people themselves, as their constituent power.
They further prayed to declare the amendments made in Chapter VII of the Constitution, particularly sections 20, 21, 30, 33, 34, 41, 45, 48, and 49 of the 27th Amendment, are ultra-vires the preamble, Articles 2A, 4, 9, 10A, 25 and 175(3) of the Constitution.
Likewise, they prayed the apex court to declare that the reconstitution of the JCP under Article 175A of the Constitution, through the 26th and the 27th Amendment, and SJC under Article 209, in section 48 of the 27th Amendment, are violative of the principles that the appointment and removal of members of judiciary should be within the domain and supervision of the judiciary.
They prayed the apex court to set aside any action taken by the respondents or any other person of authority in pursuance of the 27th Amendment.
The four IHC judges requested the apex court that, during the pendency of the instant petition, it should restrain and prohibit the reconstituted JCP from appointing any judges under Article 175A or ordering any transfers under Article 200 of the Constitution.
They also requested the apex court to restrain and prohibit the reconstituted Supreme Judicial Council from taking any action against any of the judges of the constitutional courts.
