ISLAMABAD:
The Supreme Court has refused to entertain the petition of the Lahore Bar Association (LBA) challenging the 27th constitutional amendment and subsequent transfer of three judges of the Islamabad High Court (IHC) to different high courts.
It is learned that the Supreme Court Registrar’s office referred the petition to the Advocate-on-Record (AOR) without issuing a written order. The petition had been filed through senior advocate Hamid Khan.
Interestingly, none of the bona fide stakeholders challenged the 27th Amendment in the Federal Constitutional Court (FCC). Advocates opposed to the 27th Amendment still look to the Supreme Court to safeguard the independence of the judiciary.
However, legal experts question whether it is reasonable to expect the Supreme Court to entertain a petition against the amendment when CJP Yahya Afridi himself is seen as a beneficiary of the 27th Amendment.
A senior lawyer said that even though the Supreme Court no longer had jurisdiction under Section 184(3), it was the responsibility of the registrar to inform the petitioners in writing. “It’s like the return of a complaint in a civil action. It must be done through a written order,” he added.
We also learn that the LBA will soon appeal the refusal of the registrar to receive the request.
Prior to the 27th Amendment, if the SC Registrar’s Office returned a petition, objections were conveyed through a written order that could be challenged by appeal in chambers. However, in the present case, the petition was returned without a written order.
In its petition, the LBA asserted that the judicial powers of the Supreme Court could not be taken away by another branch of government, namely Parliament. He argued that such an amendment undermined the Constitution and destroyed judicial independence.
“The said Constitution (27th Amendment) is therefore unconstitutional and void, and the Supreme Court, being an indivisible judicial institution at the apex, cannot have its powers and jurisdiction taken away,” the petition said.
The petition further asserted that the independence of the judiciary – including the appointment, transfer and removal of superior court judges – was among the fundamental elements of the Constitution and therefore could not be amended.
He argued that Parliament, being a constituted rather than a constituent body, had no power to amend Article 200 in a manner that would undermine judicial independence and subject the judiciary to the executive.
The petition also argued that despite Article 239(6) and previous constitutional amendments aimed at ousting judicial review, superior courts retained the power to review constitutional amendments that violated fundamental or salient features of the Constitution.
He further argued that the newly created FCC itself could not hear challenges to the 27th Amendment because its own creation and jurisdiction were in dispute.
According to the petition, FCC judges were the beneficiaries of the amendment and therefore could not rule on its constitutionality. The LBA also challenged the transfer of IHC judges under amended Article 200, arguing that the transfers lacked reasons, criteria, transparency and demonstrable institutional necessity.
