ISLAMABAD: Two more petitions landed before the Supreme Court on Friday, challenging the 26th Constitutional Amendment on the grounds that it violates salient features of the Constitution and disrupts the foundational structure built upon it.

One of the joint petitions was filed by BNP-M chief Akhtar Mengal, Dr Fehmida Mirza, Mohsin Dawar and Mustafa Nawaz Khokhar through their counsel Salahuddin Ahmed, who also filed a separate petition independently.

The petitions requested the apex court to declare the 26th Amendment as having been passed in a manner that contradicts the Constitution and the law, thus rendering it non-est, void ab initio, and without legal effect. The petitions urged the court to strike down all acts, decisions, notifications, proceedings or superstructure by any person, authority or body that is based on the same.

The petitioners said asked the Supreme Court to order an independent inquiry into the manner in which votes were allegedly coerced and procured in parliament in relation to the Act, particularly regarding the factual averments in the present petitions.

Fehmida Mirza, Akhtar Mengal, Mohsin Dawar and Mustafa Khokhar seek probe into alleged coercion of parliamentarians during amendment’s passage

Without prejudice, they said, the court should also declare that sections 7, 14, 17 and 21 of the 26th Amendment are ultra vires and void ab initio being violative of the independence of judiciary since it destroys the salient features of the Constitution.

They also sought a declaration that sections 7, 14, 17 and 21 of the Act are incapable of being given legal effect due to impossibility and that the so-called Judicial Commission and the so-called constitutional benches, and all their proceedings and acts were non-est, nullity and void ab initio.

The petitions requested the top court to declare that sections 7, 14, 17 and 21 of the Act were required to be interpreted harmoniously and in light of the salient and essential provisions of the Cons­titution guaranteeing the independence of the judiciary and trichotomy of powers and to avoid conflict with the same.

The petitions contended that Pakistan was a federation and federalism has been the guiding ideology of the state long before the promulgation of the 26th Constitutional Amendment and even prior to the creation of Pakistan.

“The Pakistan Resolution of March 23, 1940 demands an independent state in which the constituent units shall be autonomous and sovereign. The autonomy of the federating units is enunciated in the preamble of our Constitution. All twelve parts of our Constitution refer to the federating units and contain provisions protecting their representation and autonomy,” the petitions emphasised.

The petitions feared that the constitutional benches in the Supreme Court and high courts will be formed in line with the principle of seniority and for fixed terms of not less than two years to prevent arbitrary or motivated removals.

“Any deviation from the seniority principle shall only be for cogent reasons recorded in writing which shall be justiciable. Moreover, it is for the bench of the Supreme Court hearing any appeal to decide whether the same involves a substantial question of law as to the interpretation of the Constitution requiring referral to the constitutional benches,” the petitions said.

Published in Dawn, November 9th, 2024