The Sindh High Court turned down an application for a stay of implementation of the 26th constitutional amendment, observing that Supreme Court had already held that until the law was finally held to be ultra vires, for any reason, it should have its normal operation.
Issuing its order on the application, a division bench headed by Chief Justice Mohammad Shafi Siddiqui observed that the Supreme Court had deprecated the tendency to render interim orders having the effect of suspending a “law”.
The petitioners’ counsel Ali Tahir had filed the application for ad-interim orders seeking suspension of the very enactment/provision of the constitution under consideration. The court observed in its order that the SC also held in the Aijaz Jatoi case that a law is to be taken as validly made and operative till it is “declared” otherwise.
The court observed that it has been consistently maintained, especially in revenue and constitutional matters, that interim orders, having the effect of suspending a law, ought not to be passed.
It said that there was a plethora of edicts to such effect, including the cases of Aitzaz Ahsan, Aijaz Jatoi and Dunlop, and recently the same has been emphasized in the order passed in the case of Commissioner Inland Revenue, Large Taxpayers Office.
The court observed that in mutatis mutandis application of the binding edicts “interim orders” of such nature cannot be extended in this petition and same is dismissed. The SHC stated that the counsel for the petitioners also did not press the application for constitution of a full bench and the same was also dismissed as withdrawn.
It directed the respondents to file comments on the petitions within two weeks. The petitioners, who included Mohammad Ashraf Sammo and Malir Bar Association President Nasir Raza, had submitted that the 26th Amendment violated the principles of separation of power, judicial independence and rule of the law.
The counsel for the petitioners had earlier submitted in the petitions that the impugned amendment had been amended in such a way that a litigant such as federation/province was seen to pick and choose benches for their own cause and for their own litigation and this had ignored a universal principle that justice should not only be done but seen to have been done. The counsel argued that it had been shown to the public that the parliamentarians had conquered the judiciary by empowering their decisive strength in the judicial process and one of such process was the formation of the judicial commission.
The counsel argued that individuals may or may not matter but the matter of concern was the executives’ invasion into the regime of independent judiciary. The counsel submitted that one such fundamental right, which was the independence of judiciary, had been compromised. They said that the preamble of the constitution also guaranteed the safeguard of the fundamental rights.
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