Summary:
A recently promulgated ordinance granting exclusive jurisdiction to constitutional benches of the Sindh High Court over Article 199 matters has been challenged. A petition filed in the Sindh High Court contests the ordinance’s provisions regarding judicial recusal and its perceived encroachment on judicial independence and accountability, asserting it exceeds legislative competence.
The recently promulgated Constitutional Benches of High Court of Sindh (Practice and Procedure) Ordinance, 2025, faces a legal challenge in the Sindh High Court (SHC). This ordinance seeks to grant exclusive jurisdiction to specific constitutional benches for all matters falling under Article 199 of the Constitution. Legal circles view this development with keen interest, as it has significant implications for judicial practice.
The ordinance, published in the Sindh Government Gazette on November 15, was issued to regulate the constitution, jurisdiction, administration, and procedure of constitutional benches. These benches were initially established in November of the preceding year following the 26th Constitutional Amendment. Its enactment has drawn attention regarding the executive’s role in judicial administration, according to legal experts.
Challenging the Exclusive Jurisdiction Ordinance
Barrister Ali Tahir filed a petition in the SHC, naming the province through the Sindh chief secretary and law secretary as respondents. He argues that the promulgation of the Constitutional Benches Ordinance represents a significant intervention by the executive into the administration and adjudication of constitutional matters within the SHC. This challenge underscores concerns about judicial autonomy.
One of the primary contentions revolves around Section 3(1) of the ordinance. This section mandates that “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.” The petitioner argues that this effectively ousts the jurisdiction of other regular SHC benches, a move he contends goes beyond procedural regulation into substantive judicial power.
A particularly controversial provision is Section 6 (Recusal and Misconduct). It states that any recusal or refusal by a judge nominated for these constitutional benches “will prima facie amount to misconduct” and mandates referral to the Supreme Judicial Council under Article 209. Barrister Tahir asserts this encroaches upon the established constitutional scheme for judicial accountability and adds language not found in the Constitution itself. SindhNews.com has been closely following this legal development.
Furthermore, the petitioner highlights Section 11, a non-obstante clause, which stipulates that the Constitutional Benches 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.” This provision, among others, is challenged for allegedly transgressing constitutional limits and exceeding the legislative competence of the provincial assembly.
The petition also scrutinizes the issuance of the ordinance by an acting governor, suggesting undue haste and a bypassing of the regular legislative process despite no pressing emergency. Other contested provisions include the tenure of judges on these benches, the creation of separate administrative apparatus, and criteria for case management.
Following the promulgation, a new judicial roster has been issued. This roster constitutes two division and two single-judge constitutional benches at the SHC’s principal seat in Karachi to handle Article 199 matters exclusively. Meanwhile, five division and six single-judge regular benches will now preside over other cases, including criminal and civil appeals, bail applications, and company matters.
The challenge to the Constitutional Benches Ordinance raises fundamental questions about the separation of powers and judicial independence. The SHC’s decision on this petition will have profound implications for the procedural and substantive aspects of constitutional adjudication in the province.