The petitioners caution that such a shift threatens to disrupt the balance of powers, which could lead to a destabilizing constitutional conflict
By Asgher Ali Mubarak
ISLAMABAD: A group of senior politicians from different political parties, including Sardar Akhtar Mengal (BNP-M), Ex-Senator Mustafa Nawaz Khokhar, Dr. Fahmida Mirza (GDA), and Mohsin Dawar (NDM), have filed a constitutional petition before the Supreme Court challenging the recently passed 26th Constitutional Amendment.
This amendment, which alters the procedure for selecting the top judge and forms constitutional benches in the superior courts, has raised concerns among the petitioners regarding its impact on the independence of the judiciary and the delicate balance of powers enshrined in the Constitution. The petitioners argue that the amendment undermines judicial independence. They claim it violates the trichotomy of powers. This principle requires the executive, legislature, and judiciary to respect each other’s domains.
They note that while judicial overreach into the executive and legislative functions has been criticized in the past, the amendment represents a case of parliamentary overreach into the judicial domain. The petitioners caution that such a shift threatens to disrupt the balance of powers, which could lead to a destabilizing constitutional conflict. In addition to concerns over the substance of the amendment, the petitioners have also questioned the “constitutionally defective manner” in which the bill was passed.
They highlight a dispute over Senate elections, specifically in Khyber Pakhtunkhwa (KP), which was not conducted in line with the Election Commission of Pakistan’s (ECP) directives. The ECP had postponed the elections in KP due to issues with the administration of oath for elected members, leading to a situation where the representation of KP in the Senate was significantly reduced during the passage of the amendment. The petitioners argue that this reduction in KP’s representation violated constitutional principles, particularly in the context of a constitutional amendment that affects the entire country.
The petitioners contend that the flawed representation of KP not only skewed the process but also carried significant consequences for the constitutional amendment, which was passed with a narrow majority. They argue that for such an important amendment, a fair and thorough deliberative process was necessary, where MPs from all provinces could debate and persuade their counterparts.
The petitioners assert that the lack of proper representation for KP in the Senate at the time of the vote compromised the integrity of the amendment’s passage. Given these concerns, the petitioners have requested that the court hear the case before a full court rather than a constitutional bench, which would be formed under the very amendments being challenged.
