A bill with regard to the constitutional benches of the Sindh High Court (SHC) has been placed before the provincial assembly in terms similar to the impugned Constitutional Benches of High Court of Sindh (Practice & Procedure) Ordinance, the provincial law officer told the SHC on Thursday.
During a hearing of identical petitions, the additional advocate general said that it is likely that the bill would be deliberated upon in the upcoming session of the PA. An SHC division bench headed by Justice Adnan Iqbal Chaudhry then adjourned the hearing.
Ali Tahir and the other petitioners said that the impugned ordinance is a significant intervention in the administration and the adjudication of constitutional matters within the SHC by the executive branch.
The impugned ordinance purports to regulate the constitution, jurisdiction, administration and procedure of the constitutional benches established under Article 202-A of the constitution, they added.
They said that although Article 202-A(6), added after the 27th amendment, allows the PA to regulate how the constitutional benches of the SHC work, the way this ordinance was issued raises concerns.
The clause uses the phrase “Act of the Provincial Assembly”, and while the constitution’s definitions include an ordinance within that category, the troubling part is that the ordinance was not issued by the governor at all, they added.
They said that it was instead pushed through an acting governor in clear haste, almost as if there was a race to show how quickly control over the judiciary can be tightened. One is left to ask what possible urgency existed that the PA could not meet, debate and pass this measure through normal legislative process, they added.
They said that any step that touches the judiciary should be taken with serious reflection, broad consultation and transparency, but in this case there was no input from the bar council, no engagement with civil society and, apparently, not even a conversation with the judiciary itself. In the present case there was no pressing emergency that warranted bypassing the legislative process, especially when the matter relates to a judicial reform, they added.
They said that the issuance of the impugned enactment, bypassing the parliament and the due legislative process, constitutes a violation of the rule of law and parliamentary sovereignty. No emergent situation existed to justify the bypassing of the parliament in promulgating the impugned enactment, they added.
They said that the ordinance, by providing that every application, cause, matter or petition filed with the SHC falling within Article 199 would be heard and decided exclusively by the constitutional benches, purports to oust the jurisdiction of all the other benches for all Article 199 matters.
They said that Article 6 of the ordinance that declares that refusal by a judge to accept nomination to the constitutional bench would prima facie amount to misconduct is beyond the legislative competence of the PA and, consequently, the governor, so it is also ultra vires Article 202-A and Article 209 of the constitution.
They requested the SHC to declare the constitutional benches ordinance unconstitutional, and strike down the impugned ordinance in its entirety, or as an alternative, strike down the provisions that transgress constitutional limits, distort the scheme of Article 202-A or create mechanisms not permitted by the constitution.
