Supreme Court returns plea against 27th Amendment

ISLAMABAD: The Supreme Court has declined to entertain a petition filed by the Lahore Bar Association (LBA) challenging the 27th Constitutional Amendment and the subsequent transfer of three Islamabad High Court judges to other high courts.

The Supreme Court registrar’s office returned the petition to the Advocate-on-Record without issuing a written order. The petition had been filed through senior lawyer Hamid Khan.

None of the bona fide stakeholders has so far challenged the 27th Amendment before the Federal Constitutional Court (FCC). Lawyers opposing the amendment are still looking to the Supreme Court to protect judicial independence.

However, legal experts have raised questions over whether the Supreme Court would take up a challenge to the amendment when Chief Justice of Pakistan Yahya Afridi is regarded as a beneficiary of the 27th Amendment.

A senior lawyer was quoted as saying that even if the Supreme Court no longer had jurisdiction under Article 184(3), the registrar was still required to communicate the objections in writing. "It is like the return of a plaint in a civil suit. That has to be done through a written order."

The LBA is expected to file an appeal against the registrar office’s refusal to entertain the petition.

Objections raised in petition

Before the 27th Amendment, if the Supreme Court registrar’s office returned a petition, objections were conveyed through a written order that could be challenged through an appeal in chambers. In this case, however, the petition was returned without a written order.

In its petition, the LBA argued that the judicial powers of the Supreme Court could not be removed by parliament and that such a move undermined the Constitution and damaged 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 that the independence of the judiciary, including the appointment, transfer and removal of judges of the superior courts, formed part of the Constitution’s basic features and could therefore not be altered through amendment.

It further contended that parliament, as a constituted and not constituent body, did not have the authority to amend Article 200 in a way that allegedly weakened judicial independence and made the judiciary subordinate to the executive.

The LBA also maintained in its petition that despite Article 239(6) and earlier constitutional amendments aimed at excluding judicial review, the superior courts still retained the authority to examine constitutional amendments that violated the Constitution’s basic or salient features.

It also argued that the newly established FCC could not hear challenges to the 27th Amendment because its own creation and jurisdiction were themselves under challenge. According to the petition, FCC judges were beneficiaries of the amendment and therefore could not decide on its constitutionality.

The petition additionally challenged the transfer of Islamabad High Court judges under the amended Article 200, arguing that the transfers were made without disclosed reasons, criteria, transparency or demonstrable institutional necessity.