Supreme Court Dismisses Petitions Challenging 26th Constitutional Amendments

ISLAMABAD: The Supreme Court of Pakistan on Thursday dismissed a series of petitions challenging the 26th proposed constitutional amendments after the petitioners unexpectedly sought to withdraw their case.

The much debated constitutional package comes in the shape of the 26th amendment. Some of the salient features of this amendment include reforms for the judiciary. Here are a few. It establishes a federal constitutional court, and it proposes a restriction on the term of the Chief Justice of Pakistan to be limited to three years.

The petitions led by prominent legal figures were of much interest, as it was perceived to be a test for the proposed amendments that had caused much debate in both the legal and political circles. The joint petition was led by Abid S. Zubairi, former president of the Supreme Court Bar Association, among other members of the Pakistan Bar Council who were alarmed at the implications of the amendments on judicial independence and separation of powers.

Petitions Heard and Withdrawal Application

The Supreme Court three-judge bench, headed by Chief Justice Qazi Faez Isa and including Justice Naeem Akhtar Afghan and Justice Shahid Bilal Hassan, conducted the hearing on these petitions. During the course of the hearing, Hamid Khan of the petitioners pleaded with the court to allow withdrawal of the case.

He was surprised by the move and questioned why Zubairi, who was one of the persons involved in the case, had not taken the field himself and appeared to withdraw the petition. The CJP said he was prepared for the case by six top lawyers and all of them could have taken the court to make the request.

The retreat has left eyebrows raised, as the petitions had initially sought a major ruling from the court on the mooted constitutional amendments. Zubairi and other members of the Pakistan Bar Council filed their petition under Article 184(3) of the Constitution on September 16, arguing that the amendments posed a threat to the judiciary’s independence and principle of separation of powers.
Judicial Independence Concerns

In their petition, Zubairi and his colleagues claimed that the amendments would violate basic constitutional precepts were enacted. They urged the Supreme Court to declare the separation of powers and judicial independence sacrosanct and beyond the pale of parliamentary interference.
The petitioners, it is submitted, had strongly protested over the inclusion of a federal constitutional court and a provision of a fixed three-year term for the Chief Justice. They contended that these provisions would vitiate the independence of the judiciary and hamstring its ability to act as a shield to protect fundamental rights.

They further sought an injunction to restrain and prevent the federal government from submitting the bill before the Parliament, thus seeking the court to suspend the effect of the proposed amendments.
A Larger Legal and Political Controversy

It follows the larger legal and political maneuvering around the 26th amendment that the petitions of proposed changes are now being withdrawn. The challenges in the Supreme Court apart, the initiative has suffered at several high courts across the country. And again, lawyers as well as parties are split on what the amendments amount to: a much-needed reformation or an all-out attack on the judiciary and the authority it exercises.

Just a day before withdrawal, the major political parties came to an understanding over the proposed amendments-PML-N, PPP, and JUI-F-all in a development that injected further intensity into the debate.

It marks a kind of watershed in the continued debate, which is an offshoot of the 26th constitutional amendment. While this withdrawal means the court will never deliver judgment on the constitutionality of the amendment, the legal and political debate over the reforms are certainly not coming to an end anytime soon. As the government advances its proposed changes, implications for Pakistan’s judiciary and its independence will continue to be closely scrutinised.

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