ISLAMABAD: Pakistan Tehreek-e-Insaf (PTI) leader Shoaib Shaheen has said that the party will challenge the 26th Constitutional Amendment recently passed by the coalition government with two-thirds majority, calling it an “attack” on the country’s judicial system.
The ruling coalition, after weeks of political manoeuvrings and deliberations, finally managed to pass the contentious 26th Constitutional Amendment bill, empowering the country’s parliament to pick the next Chief Justice of Pakistan (CJP) from among the three most senior Supreme Court judges.
The amendments brought numerous changes to the country’s judicial system, including taking away suo motu powers, formation of constitutional benches, and performance evaluations of high court judges.
In light of the fresh amendments, a Special Parliamentary Committee nominated Justice Yahya Afridi, third on the seniority list (excluding the incumbent CJP Qazi Faez Isa), as the next chief justice of Pakistan.
Subsequently, President Asif Ali Zardari approved Justice Afridi’s appointment under clause 3 of Article 175A read with Articles 177 and 179 of the Constitution, according to a notification issued by the Ministry of Law and Justice today.
“We and the lawyers’ community will challenge it [26th Constitutional Amendment] as a whole,” PTI leader Shoaib Shaheen said while clarifying that the party’s challenge is not aimed at the appointment of Justice Afridi as CJP.
The senior PTI leader stated this while speaking on Geo News programme ‘Aaj Shahzeb Khanzada Kay Sath’.
He pointed out that the seniority principle was formulated after the late Justice Sajjad Ali Shah, fourth on the seniority list, was appointed as chief justice.
“Later in 1998, all judges of Supreme Court and high courts sit together chalked out the seniority formula and decided that the senior most judge will become the next chief justice,” Shaheen added.
Speaking of the constitutional package, the PTI leader said that everyone knows how the government carried out the 26th Amendment. “The way people were picked up, abducted and bribed […] Its constitutionality is a different question,” he said.
Most importantly, he claimed, the government has created a division among the top court judges by passing the judicial reforms.
He noted that the “Form 47 parliament” (reference to the alleged rigging in the February 8 general elections) created a hope in judges that whoever gives judgment in favour of the government will become the next chief justice.
“And the individual who gives independent judgments, like the July 12 verdict in the reserved seats case, cannot become the country’s top judge,” Shaheen said.
In response to a question, Shaheen said his party has “no issues” with Justice Afridi in a personal capacity. “He is a very defined and independent judge […] but the problem is he is third on the seniority list.”
“The right to hold position of chief justice lies with senior number 1,” he said, adding that the decision to appoint Justice Afridi, out of turn, is not correct.
He announced that PTI would challenge the 26th Constitutional Amendment, as a whole. “Our stance is very clear […] it was senior most’s right which was snatched.”
Furthermore, he said, the process of formation of constitutional benches is “an attack on judicial independence”.
Responding to another question, the PTI leader said the principle question — when they challenge the amendment — will be: “Has the executive possess the authority to interfere in the judiciary; Is this independence of judiciary the basic structure of the Constitution and if yes then does the parliament have authority to change this structure.”
When asked that PTI’s objections would be heard by a constitutional bench, Shaheen said they were going to challenge the “original constitution” and constitutional bench was the product of constitutional amendment.
“We would request that the case should be heard by a full court. It cannot be that a by-product of this constitutional amendment hears the case,” he added.
He also lambasted the “change in the structure” of Judicial Commission of Pakistan (JCP), saying that the government has taken the dominant role of constituting the benches that will hear the cases against it. “They can also dissolve the bench and reconstitute it,” he regretted.
Referring to the PTI’s boycott of Special Parliamentary Committee’s meeting, he said: “Our representation had no impact […] We were redundant. They have the dominant role in the parliamentary panel.”
He also said they will decide on becoming part of the judicial commission “in one or two days” and are most likely to join it.
Moreover, he said that the judicial commission has no right to constitute constitutional benches as “it is a direct interference into the affairs of the supreme court or high court.”
‘In-camera session’
Speaking on the same show, Jamiat Ulema-e-Islam-Fazl (JUI-F) Senator Kamran Murtaza — who was part of the parliamentary committee which picked Justice Yahya Afridi as the next Chief Justice of Pakistan with a majority vote of 8-1 — said that PTI should have attended the crucial meeting.
“If you are part of the parliamentary system then you should not boycott the session,” he added.
The JUI-F leader said that the PTI’s lawyers should have given their input over the matter, adding that they made all-out efforts to convince the former ruling party’s lawmakers to attend the parliamentary meeting but to no avail.
When asked why the JUI-F opposed the name of Afridi for the next CJP, Senator Murtaza declined to disclose the details of the meeting saying the proceedings were in-camera.
Responding to a question, Murtaza categorically rejected the Salman Akram Raja’s recent statement regarding the consensus on the judicial package and added that the JUI-F tried removing the objections of PTI till last moments.
Raja, during a recent interview on Geo News, had claimed that they were not agreed on the content of the draft of the 26th Amendment.
He quoted the JUI-F chief as saying that their lawmakers would be kidnaped if they do not vote for the constitutional tweaks. The government would get the bill approved through the parliament at all costs, he quoted the JUI-F chief as saying.
To another query, Murtaza said that they accept the nominating of Justice Afridi as the next CJP, saying that a “constitutional institution selected him via a constitutional process”.
“He [Justice Yahya Afridi] is a gentleman. He has a number of qualities,” he added.
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