Eight former presidents of the Supreme Court Bar Association (SCBA), including notable figures such as Abid Hassan Minto and Hamid Khan, have filed a petition urging the Supreme Court to declare the 26th Constitutional Amendment Act, 2024, as void ab initio due to its violation of key constitutional principles. The lawsuit was submitted on Friday and cites multiple governmental bodies, including the Ministry of Law and Justice and the Election Commission of Pakistan, as respondents.
The petitioners argue that several sections of the amendment, specifically sections 7, 14, 17, and 21, are ultra vires the Constitution and infringe upon fundamental rights and the principles of judicial independence, federalism, and separation of powers. They request that these sections be suspended and that any related actions, particularly those concerning the appointment of judges to the High Courts and Supreme Court, be stayed until a decision on this matter is reached.
The petition highlights procedural flaws in the amendment’s passing, particularly noting incomplete representation for the Khyber Pakhtunkhwa province in the Senate, limiting its ability to participate fully in constitutional amendments.
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Significantly, the 26th Amendment is claimed to introduce substantial political influence over judicial appointments by altering the composition of the Judicial Commission of Pakistan (JCP), reducing judges to a minority on the commission. It also empowers the JCP to form “constitutional benches” that handle pivotal constitutional matters.
Moreover, the amendment changes how the Chief Justice of Pakistan (CJP) is appointed, transferring this authority to a “Special Parliamentary Committee,” diverging from the previous norm of seniority among Supreme Court judges. The scope of the Supreme Judicial Council (SJC) has also been expanded to include broad criteria for judge removal, with vague definitions of “inefficiency.”
