ISLAMABAD: The Supreme Court (Practice and Procedure) Amendment Ordinance 2024 was challenged on Tuesday with a request that all decisions and actions taken under the new legislation be declared illegal.
The petition challenging the ordinance that amended the Supreme Court (Practice and Procedure) Act 2023 was filed by Advocate Chaudhry Ehtishamul Haq. The petitioner contended that the independence of judiciary has a direct nexus with rule of law rather a salient feature of the Constitution and any attempt to destroy or take away independence of judiciary in violation of the cherished principles of policy, Islamic provision and fundamental rights, should be guarded against jealously.
The petition argued that the ordinance recently promulgated by the president violates cherished constitutional principles and fundamental rights, specifically Articles 4, 9, 10-A, and 175, exceeding the scope of Article 89 of the Constitution. It pleaded that the ordinance was liable to be struck down as it violates the spirit of parliamentary sovereignty and undermines parliamentary authority.
The petition explained that Article 89 allows the president to promulgate ordinances when either house of parliament was not in session. However, the Constitution envisions a system where legislative powers primarily rest with parliament. Thus promulgation of ordinances without exhausting alternative democratic means undermines parliamentary supremacy, it argued.
SC urged to declare ‘illegal’ all decisions taken under new law
“The use of ordinances should be restricted to situations of genuine necessity and urgency,” the petition said, adding that the ordinance deals with matters that could have been deliberated during the regular parliamentary session, and its promulgation could be viewed as an overreach of executive power, bypassing legislative debate and scrutiny.
“Frequent reliance on Article 89 reduces the effectiveness of the legislative process, which is built on checks, balances, and accountability. The ordinance-making power, if used excessively, displaces the role of Parliament and weakens democratic processes,” the petition said.
“The framers of the Constitution intended the power of ordinance-making to address situations where immediate action is required. If no pressing emergency is evident, the promulgation of the ordinance could be challenged on the grounds of misusing an exceptional power for ordinary legislative purposes,” it said.
Moreover, the petition said, ordinance-making is no substitute for the regular legislative processes.
“In the present case, there was ample opportunity for the matter to be addressed through the normal legislative process, ensuring proper debate, discussion, and consideration by elected representatives.
By promulgating an ordinance in the absence of urgency, the executive has effectively deprived the legislature of its constitutional role,“ the petition said.
Published in Dawn, September 25th, 2024
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