Police officers walk past Pakistan’s Supreme Court building, in Islamabad, Pakistan, April 6, 2022. REUTERS
ISLAMABAD:
After the amendment was passed, Chief Justice of Pakistan Yahya Afridi called a full court meeting on November 15. However, the Supreme Court judges could not agree to comment on the 27th Constitutional Amendment.
Perhaps it was the first time that the full meeting was held in the CJP chamber in which more than a dozen judges were present.
It was learned that during the meeting two proposals were given to the SC judges.
The first referred to collective resignation. The second was about supporting the proposed statement on the 27th amendment.
The proposed declaration indicated that parliament passed the 27th Constitutional Amendment, which is binding, and that the Federal Constitutional Court (FCC) has been established, and any challenges to the 27th amendment will go to the FCC.
However, no consensus could be reached on the proposed declaration. A section of judges opined that the proposed declaration would be an endorsement of the 27th Constitutional Amendment.
To avoid dissenting opinions, the statement on the amendment could not be issued. Sources also confirmed that the idea of ​​collective resignation was given to the judges during the meeting.
It is also learned that CJP Afridi did not read Justice Salahuddin Panhwar’s letter regarding holding a full court meeting on the 27th Constitutional Amendment, and the sealed envelope of the letter was returned to Justice Panhwar during the meeting.
CJP Afridi also rejected rumors that he had spoken to the government to regain his title of ‘Chief Justice of Pakistan’ through a person-specific constitutional amendment.
However, when the 27th Constitutional Amendment Bill was introduced in the Senate, Justice Afridi noticed that the words “Chief Justice of Pakistan” were being removed.
Given this, he decided to tender his resignation as CJP. The government later maintained its title in the amendment.
The lawyers dispute that when government officials informed him about the proposed 27th Amendment, then the CJP should have immediately called a full court meeting to discuss the institutional response.
Even Justice Afridi did not call a meeting on the letters written by Justice Syed Mansoor Ali Shah, Justice Athar Minallah and Justice Salahuddin Panhwar.
Legal opinion is divided over the filing of a petition against the 27th amendment by four judges of the Islamabad High Court. The SC Registrar’s Office has refused to accept his request.
A lawyer, however, submitted that throughout the world in constitutional jurisprudence it has been established that it is the inherent jurisdiction of that court to ascertain the vires of any expulsion clause which removes the jurisdiction of such court.
Former Additional Solicitor General Tariq Mahmood Khokhar said that the “27th Constitutional Amendment” is an absurd nullity.
Khokhar stated that it seeks to erode constitutional and democratic foundations, violating the basic structure of the Constitution, including the principles of separation of powers, judicial independence and rule of law. Empowers the FCC at the expense of the SC.
“It was enacted by an unelected parliament, which lacks constitutional and democratic legitimacy. Courts accept an act of parliament at its own face value, without the need for support from any higher authority.
“But a law passed by a non-representative parliament has no face value in itself; it is not an act of parliament. As such, it suffers from procedural and substantive invalidity,” he said.
He stated that there is no break in legal continuity. The SC judges have not changed their judicial allegiance. They are bound by their oath. The SC has not issued any institutional response to the 27th amendment.
“It is for the SC to judge what it will recognize as valid legislation,” Khokhar said, adding that the SC, sitting in full, is an appropriate forum to judge the constitutionality of the 27th amendment.
By contrast, the FCC is the creation of the 27th Amendment, whose members are hand-picked by the executive. To many observers, it smacks of executive capture. “As such, he should not be the judge of his own cause,” Khokhar said.
