ISLAMABAD  -  The Supreme Court (Practice and Procedure) Amendment Ordinance regarding constitution of the Committee has been challenged before the apex court.

Afrasiab Khattak, former Senator and chairperson of the Human Rights Commission of Pakistan, and a journalist Farieha Aziz Wednesday filed a petition under Article 184(3) of the Constitution and cited Secretary to the President, and federation through Secretary Ministry of Law and Justice as respondents. They also prayed the apex court to declare that the impugned ordinance violates Article 89 of the Constitution, and strike down.

The petitioners contended that the fundamental rights conferred under the Constitution lose meaning in the absence of an independent judiciary to enforce them. Through the impugned section (changed Sec 2), the executive has attempted to undermine judicial independence. The impugned section targets one Judge, the third most senior Judge of the Supreme Court.

They said in the case of the 2023 Act, parliament created a committee of the Chief Justice and the two senior most judges to constitute benches. In the case of the impugned section, there is a specific and obvious design to exclude one specific Judge and grant controlling power to another, the Chief Justice of Pakistan. It is a blatant interference in judicial independence.

They mentioned that the Supreme Court has noted that the power to promulgate ordinances is limited to “emergent matters”, and the Constitution states that this is limited to situations where “immediate action” is required. There was no such emergency in the case of changing the composition of the Committee, and nor has the same been identified.

They contended that an attack on judicial independence is an attack on access to justice and violates inter alia Article 4, 9, 10, 10-A and 25 of the Constitution. It impacts access to justice and therefore fundamental rights.

The petitioners maintained that independence of the judiciary is a salient feature of the Constitution, and must be safeguarded. The Objectives Resolution, which is now a substantive part of the Constitution by means of Article 2A of the Constitution, also states that independence of the judiciary shall be fully secured. The people have given to themselves a supreme document which guards judicial independence.

They said that a Full Bench of this Court upheld the 2023 Act less than a year ago. The very rationale for upholding the law was to ensure that “one man” was not exercising absolute power as far as the constitution of benches is concerned. The Full Bench linked such democratising of decision-making with the legitimacy and the credibility of this Court. The Impugned Section is contrary to the judgment of the Full Bench in Raja Amer Khan and another vs. Federation of Pakistan (PLJ 2024 SC 114).

The Petitioners requested that this petition be heard by the Full Court which had earlier endorsed the 2023 Act by a majority decision. If not, the Chief Justice of Pakistan (who has been granted extra powers by the Impugned Section), Justice Aminuddin (who has been nominated by the CJP as a member of the Committee under the Impugned Section) and Justice Munib Akhtar (who would be a member of the Committee if the Impugned Section is struck down) should not be part of any bench constituted to hear this petition.