• Petitioner says provision of recusal and misconduct ‘encroached upon constitutional scheme for judicial accountability’
• Constitutional Benches of High Court of Sindh (Practice and Procedure) Ordinance promulgated

KARACHI: A petition was filed in the Sindh High Court on Tuesday against a recently promulgated ordinance empowering the constitutional benches of the high court with exclusive jurisdiction over constitutional matters as every petition or application falling within Article 199 of the Constitution will be heard and decided solely by these benches.

Petitioner Barrister Ali Tahir moved the SHC and stated in the petition that the promulgation of the Constitutional Benches of High Court of Sindh (Practice and Procedure) Ordinance, 2025 had caused a significant intervention in administration and adjudication of constitutional matters within the SHC by the executive.

Citing the province through the Sindh chief secretary and law secretary as respondents, he submitted that the impugned ordinance had been published in the Sindh Government Gazette on November 15 and it purported to regulate constitution, jurisdiction, administration and procedure of the constitutional benches which were established in November last year under the 26th Constitutional Amendment.

He stated that as per the ordinance, any recusal or refusal by a judge nominated for constitutional benches “will prima facie amount to misconduct” and mandated referral to the Supreme Judicial Council.

He pleaded to strike down the impugned ordinance on the grounds that the same has allegedly transgressed constitutional limits, exceeded the legislative competence of the provincial assembly and violated the guarantees of judicial independence.

The petitioner stated that Article 202-A(6) was inserted after the 27th Constitutional Amendment allowing the provincial assembly to regulate functioning of the constitutional benches of the SHC, but there was no pressing emergency to bypass legislative process especially when the matter related to a judicial reform and it constituted a violation of the rule of law and parliamentary sovereignty.

The petitioner also maintained that the impugned ordinance was not issued by the governor, instead it was pushed through by the acting governor in clear haste as if there was a race to show how quickly control over the judiciary could be tightened.

He submitted that according to Section 3(1) [exclusive jurisdiction] of the Ordinance, “Every application, cause, matter or petition filed before the high court falling within Article 199, shall be heard and decided exclusively by the constitutional benches constituted under Article 202A of the Constitution.”

Similarly, Section 6 (Recusal and Misconduct) provides that any recusal or refusal by a nominated judge “will prima facie amount to misconduct” and mandates referral to the Supreme Judicial Council under Article 209, he added.

He maintained that the non-obstante clause in Section 11 also provided that the impugned ordinance “shall prevail to the extent of any inconsistency over any other law, rules, regulations, or even judgments of the Supreme Court or High Court”.

He also argued that there were some other key provisions including the tenure of the judges of the constitutional benches preferably not less than six months, creation of the offices of head and acting head of the constitutional benches, setting up separate registry and administrative apparatus for such benches, cases to be managed on a “first in, first out” basis with urgent applications to be fixed within 14 days and the head of constitutional benches was empowered to make rules for the practice and procedure.

By granting exclusive jurisdiction to these benches in the matters filed under Article 199, the petitioner stated that the impugned ordinance was effectively ousting the jurisdiction of other benches (regular benches) of the SHC and it was not a matter of procedure but of substantive judicial power which was the prerogative of the Constitution itself and not of subordinate legislation.

He maintained that the provision of recusal and misconduct had also encroached upon the constitutional scheme for judicial accountability under Article 209 and addition to the language of the Constitution, which was excessive and such legislative powers were not even with the provincial legislature.

The petitioner also argued that the sweeping non-obstante clause purported to override not only statutory law but also judicial precedents including binding decisions of the Supreme Court as well as other provisions were also constitutionally impermissible.

Meanwhile, a new roster was issued after the promulgation of the ordinance under which two division and as many single-judge constitutional benches have been constituted at the SHC’s principal seat at Karachi to hear these matters.

Five division and six single-judge regular benches of SHC will hear criminal, civil and banking appeals, criminal revisions, bail applications, intra-court appeals, company issues and other related matters.

Published in Dawn, November 19th, 2025