ISLAMABAD: Four judges of the Islamabad High Court challenged the 27th Amendment in the Supreme Court, saying the creation of the Federal Constitutional Court, as a separate and distinct judicial forum comprising “handpicked judges”, constitutes a “major assault” on the independence of the judiciary.
The IHC judges – Justice Mohsin Akhtar Kayani, Justice Babar Sattar, Justice Sardar Ejaz Ishaq Khan, and Justice Saman Rafat Imitiaz– on Thursday filed a petition under Articles 184 and 187 of the Constitution, read with Order XXXV Rule 6 of the Supreme Court Rules, 2025, and cited the federation and Federal Constitutional Court as respondents.
They prayed to declare that the changes made in Chapter VII of the Constitution by the 27th Amendment, particularly in sections 20, 21, 30, 33, 34, 41, 45, 48, and 49 of the 27th Amendment, is violative of the substantive provisions guaranteeing “due process” and “equal protection” of law, under Articles 9 and 25 of the Constitutions;
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They asked the apex court to restrain and prohibit the reconstituted Judicial Commission of Pakistan (JCP) from appointing any judges under Article 175A or ordering any transfers under Article 200 of the Constitution during the pendency of the instant petition and as an interim relief. They also called for restraining and prohibiting the reconstituted Supreme Judicial Council (SJC) from taking any action against any of the judges of the constitutional courts.
The IHC judges pointed out that it is for the protection of fundamental rights of citizens and for the salvation of the letter and spirit of the Constitution itself that they are bringing this matter of public importance to the Supreme Court. The petitioners maintained that through the process of transfers of the high court judges from one court to another, under amendments in Article 200 of the Constitution, fear is to be instilled and compliance to be enforced.
They stated that the composition of the Federal Constitutional Court reflects a blatant disregard for the seniority principle within the judiciary. The decision to make transfers has also been taken out of the judiciary’s realm, and the decision’s power now rests with the JCP.
The IHC judges asserted that the appropriate forum to adjudicate the challenge to the provisions of the 27th Amendment is the Supreme Court of Pakistan. The Supreme Court has been deprived of jurisdiction under section 21 of the 27th Amendment. The jurisdiction previously exercised exclusively by the apex court has been granted to another forum, the Federal Constitutional Court, which, itself, is a creature of the 27th Amendment.
The Supreme Court’s judicial power to determine its own jurisdiction cannot be ousted by a legal instrument, the very legality of which arises as a question of law before the court. “Even logic dictates that the Federal Constitutional Court can only affirm its own constitutionality, because it owes its very existence to the provisions of the 27thAmendment, which are under challenge. Were it to reach any other result, the forum would cease to be.”
They submitted that there is also a question of propriety and fairness. The judges of the Federal Constitutional Court, if asked to adjudicate upon the provisions of the 27th Amendment, would be put in an awkward and unenviable position, where they, themselves, would need to decide whether they continue to hold offices as judges of the Federal Constitutional Court – the constitutional court that purportedly binds all, and is bound by none.
They maintained that the changes made under Part VII of the Constitution through the 27th Amendment cannot take away the substantive commitments of the Constitution to ensure “due process” and “equal protection” of law.
The Code of Conduct for Judges, newly promulgated, violates the freedom of the constitutional judges, and, even otherwise, the regiments the judiciary, by creating a command structure in the office of the Chief Justice of the relevant constitutional court
Judges of a high court can now be transferred without their consent, and as a means to punish, for not towing the line of the executive. This has been ensured through the amendment in Articles 200 and 206 of the Constitution. The constitution of the SJC has been altered as well, with hand-picked judges placed in the SJC, which may help keep the sword of “misconduct” hanging over the heads of the constitutional judges.
Copyright Business Recorder, 2025
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