ISLAMABAD: The Supreme Court of Pakistan has turned down the petition of four judges of the Islamabad High Court and asked them to approach the Federal Constitutional Court. The SC advised IHC judges to approach the newly established Federal Constitutional Court for challenging the 27th constitutional amendment. The judges included Justices Mohsin Akhtar Kayani, Babar Sattar, Sardar Ejaz Ishaq Khan, and Saman Rifat Imtiaz.
The IHC judges a petition invoking the Supreme Court’s original jurisdiction under Article 184(3). They then sent the petition to the court’s registry branch. However, officials refused to entertain the plea because Article 184(3) no longer exists in the Constitution. The article earlier empowered the Supreme Court to enforce fundamental rights.
Petition Faces Procedural Barriers
Sources stated that the judges did not personally visit the Supreme Court for filing or biometric verification. Insiders said the judges chose to move the Supreme Court after months of expressing concern over what they called an “incremental but systematic dismantling” of judicial independence. They linked their concerns to the 26th Amendment and the subsequent constitutional changes.
Moreover, court officials conveyed that the petition fell outside the Supreme Court’s jurisdiction. They explained that challenges to constitutional amendments now require different procedures. Therefore, they advised the judges to approach the new Federal Constitutional Court.
However, the petitioners argued that only the Supreme Court could decide the validity of the amendment. They insisted that the FCC could not assess an amendment that created the court itself.
Key Points from the Draft Petition
The draft petition stated that the amendment violated Articles 9, 10A and 25. It argued that the amendment compromised due process, fair trial and equal protection. It further claimed that the amendment undermined judicial independence by subordinating the judiciary to the executive.
Additionally, the petition challenged the creation of the FCC. It stated that the FCC chief justice was appointed without judicial consultation. It noted that this step violated principles affirmed in landmark cases like Al-Jehad Trust and Sharaf Faridi. The petition also claimed that the first FCC judges were “handpicked” by the executive.
Concerns Over New Judicial Structure
The petition warned that the new court’s broad powers created a parallel judicial system. It said the FCC could withdraw cases from high courts at its discretion. It added that such authority enabled potential executive influence over constitutional cases.
Furthermore, the petition contested amendments to Article 200. It argued that the transfer of judges without consent exposed them to pressure and manipulation. It also challenged the new composition of the Judicial Commission of Pakistan and the Supreme Judicial Council. It said both bodies now held majorities of non-judicial members or judges appointed through the disputed process.
