SC returns 27th Amendment plea

LBA to challenge registrar office's objection

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 Islamabad High Court (IHC) judges to different high courts.

It is learnt that the Supreme Court registrar's office returned the petition to the Advocate-on-Record (AOR) without issuing a written order. The petition had been filed through senior lawyer Hamid Khan.

Interestingly, none of the bona fide stakeholders has challenged the 27th Amendment before the Federal Constitutional Court (FCC). Lawyers opposing the 27th Amendment are still looking 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 take up a petition against the amendment when CJP Yahya Afridi himself is considered a beneficiary of the 27th Amendment.

A senior lawyer said even if the Supreme Court no longer had jurisdiction under Article 184(3), it remained the registrar's obligation to inform the petitioners in writing. "It is like the return of a plaint in a civil suit. That has to be done through a written order," he added.

It is also learnt that the LBA will soon file an appeal against the registrar office's refusal to entertain the petition.

Before the 27th Amendment, if the SC registrar's office returned a petition, objections were conveyed through a written order that could be challenged through an appeal in chambers. However, in the present case, the petition was returned without a written order.

In its petition, the LBA contended that the judicial powers of the Supreme Court could not be taken away by another branch of government, namely Parliament. It argued that such an amendment undermined the Constitution and destroyed judicial independence.

"The said Constitution (27th Amendment) is thus 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 stated.

The petition further argued that the independence of the judiciary - including the appointment, transfer and removal of superior court judges - formed part of the Constitution's basic features and therefore could not be amended.

It contended that parliament, being a constituted rather than 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 past constitutional amendments seeking to oust judicial review, superior courts retained the power to review constitutional amendments that violated the Constitution's basic or salient features.

It further argued that the newly created FCC itself could not hear challenges to the 27th Amendment because its own creation and jurisdiction were under challenge.

According to the petition, FCC judges were beneficiaries of the amendment and therefore could not adjudicate upon 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.