PESHAWAR: Peshawar High Court on Tuesday issued notice to federal government, seeking its response to a plea challenging Constitution (Twenty-sixth Amendment) Act on multiple grounds.

A bench consisting of Justice Syed Mohammad Attique Shah and Justice Syed Mudasser Ameer issued the order after preliminary hearing of a petition jointly filed by three law students Najeeb Ahmad and others and a lawyer Suleman Khan, requesting the court to declare as unconstitutional and unlawful the 26th Amendment.

The petitioners have also sought interim relief, requesting the court to suspend operation of the said Act enacted on Oct 21, 2024, till final disposal of the petition.

The respondents in the petition are federal government through secretary of law and parliamentary affairs, speaker of National assembly, chairman of Senate, secretary of secretariat of parliament and the President of Pakistan.

Petitioners allege Constitution has been amended for ulterior motives

Petitioner Suleman Khan contended that the respondents had amended the Constitution of Pakistan on Oct 21 for ulterior motives.

He stated that the basic structure of Constitution had been changed which was not the mandate of the respondents as per different judgements of Supreme Court wherein it had been held that parliament had no power to de-shape the basic structure of the constitution.

He argued that due to the impugned amendment, the power and jurisdiction of superior courts had been reduced into null which amounted to an attack on the independence of judiciary and the same was against the trichotomy of powers.

The counsel contended that Supreme Court had held in one of its judgements in 2022 that parliamentarians had no un-fettered and unbridled powers. Referring to formation of constitutional court, he said that forming another court in Supreme Court was also unconstitutional that affected senior judges.

He questioned how a junior judge would become an immediate boss of his senior colleagues.

Mr Suleman argued that judiciary should be independent from executive and legislature for providing even-handed justice to people at large especially to downtrodden.

He said that state was combination of three organs including legislature, executive and judiciary and if any organ of the said body was maimed or damaged the entire would be affected.

He argued that judiciary including high courts was under the oath to protect, preserve and defend Constitution.

He pointed out that the impugned amendment was in violation of Article 175 (2) of Constitution which provided that judiciary should be separated progressively from executive within 14 years from the commencing day, which had been completed on Aug 14, 1987.

He said that maintaining the theories of separation of powers and that of checked and balance were to be strictly ensured by judiciary.

Published in Dawn, February 12th, 2025