KARACHI: The Sindh High Court (SHC) on Monday moved forward with the hearing of two petitions challenging the 26th Amendment to the Constitution and directed the federal and provincial governments to file written replies on the issue of jurisdiction at the next date of hearing.

The petitioners challenged the amendment and asked the SHC to set aside the controversial legislation and declared it ultra vires to the Constitution.

However, when a division bench comprising SHC Chief Justice Muhammad Shafi Siddiqui and Justice Jawad Akbar Sarwana took up the matter on the previous date, a federal law officer had objected that the (regular) bench could not hear these matters and the petitions might be referred to the constitutional benches of the SHC for hearing.

However, the bench issued notices to the cabinet division, ministry of law and justice and other respondents to file comments by Monday.

CJ-led bench asks federal, provincial law officers to file written replies on issue of jurisdiction

At the outset of the hearing on Monday, Additional Attorney General (AAG) Zia-ul-Haq Makhdoom again raised a similar question over the jurisdiction of the bench to hear these matters.

He also filed a response on behalf of the cabinet division and sought more time to submit a reply of the law ministry.

However, the bench noted that the respondents’ side had been raising verbal objections on the jurisdiction of this bench to hear these petitions.

Petitioners’ counsel Ali Tahir and others submitted that this bench was competent to hear and deicide their petitions as the SHC had recently passed a detailed judgement on the issue of jurisdictions of regular and constitutional benches of the high court.

The bench in its order noted that on Nov 14, it had directed the additional attorney general to file a proper response on the two petitions after hearing certain objections raised by him.

“The federal law officer said that the reply of law ministry was still awaiting which would not take more than three weeks, and he was also of the view that these matters perhaps will be heard by the constitutional benches of the SHC,” the bench stated in its order.

“We have already perused the prayer clause and are of the tentative view that since it seeks declaration to the extent of such amendment, it would fall under Article 199(1)(a)(ii), subject to further assistance of learned AAG for Pakistan and AAG for Sindh. This is also covered in view of the latest pronouncement of this Court in the cases of Attock Cement Pakistan Ltd and others Vs Federation of Pakistan and others (Const. Petition No.D-1590/23 etc.) whereby the concept of dominant relief as being claimed in a Lis was also applied, as the main basis for deciding the roster of the constitutional courts/constitutional benches.”

It noted that since the bench had been hearing verbal objections from the respondents over the issue of jurisdiction, “they had again been directed to file written response in this regard which should include a reply on merits as well as including any legal ground as to the jurisdiction of the constitutional high court (regular bench)”.

The hearing was adjourned to a date to be fixed next month, a week after winter vacation of the court.

The cabinet division in its reply submitted that the matter primarily related to the law, justice and parliamentary affairs divisions as its role was to place the summaries moved by the ministries concerned before cabinet or its committees, record minutes of cabinet meetings and issue decisions.

It may be recalled that on Dec 2, the same bench had ruled that the constitutional benches of the SHC did not have the same powers and jurisdictions as enjoyed by its parent constitutional high court or regular benches.

It had also said that in its infinite wisdom, the legislature had not blessed the constitutional benches with entire gambit of constitutional reliefs/remedies, powers, and jurisdiction, but kept the same reserved for the regular benches to grant remedy.

Published in Dawn, December 10th, 2024