From Watchdogs to Lapdogs?

Constitution-making has been a tricky business in Pakistan since its inception, as is apparent from the fact that Pakistan continued to be governed by the Colonial Government of India Act, 1935, right till 1956, nine years after independence, when finally, the country had a Constitution. But that too was not to last as it was succeeded by two more Constitutions of 1962 and then of 1973. However, we have been fortunate that despite two successive Army interventions, the 1973 Constitution has retained its position, though considerably mangled until today.

During this time, there have been various attempts to amend the Constitution. However, no other Amendments have evoked greater debate than the first, the 18th Amendment, and now the 26th Amendment brought in by the current government in the wake of the removal of the PTI government through a no-confidence motion. By far, the 26th Amendment has attracted greater attention and has also given rise to controversy as opposed to the 18th Amendment, because while the 18th Amendment merely diluted the power of the Federal Government, the 26th Amendment is seen as directly interfering with the Independence of the Judiciary, though the fact of the matter is that Judiciary in Pakistan has never been really independent. It has, by and large, played second fiddle to the Executive or what has come to be known as a “Hybrid Regime.”

This debate about the Independence of the Judiciary did not arise from the judges seeming to display partiality when deciding cases before them, but from the fact that, following the Anglo-Saxon system of Justice, the Judiciary in Pakistan had, on paper, been given the power to strike down any law made by the Parliament as being contrary to provisions of the Constitution. Central to enjoying such power was the fact that under the 18th and 19th Amendments to the Constitution, the appointments to the Superior Judiciary were to be made by a Judicial Commission where the members of the Judiciary held sway, and the members from the Bar Association were also represented.

These amendments gave new meaning to the independence of the Judiciary, but at the same time, they gave rise to Judicial activism and thereby led to interference in the functioning of the political governments by the Judiciary. It was only natural that it irked the Executive because of the curtailing of its power. Hence, all governments have yearned to bring about necessary changes, which the present government has finally accomplished through introducing the 26th Amendment, in particular Amendment to Article 175A of the Constitution, and also providing for forming a Constitutional Bench in the Superior Courts. This Amendment brings about several changes to the Constitution, but the most significant one relates to the selection of Judges of the Superior Courts and that of the Chief Justice of Pakistan.

The crucial question is whether the post-26th Amendment Judiciary will be able to rise to the occasion to preserve its independence or will be debilitated by the emergence of dissention among its members.

As per this amended Article 175A, the Judicial Commission that would select Judges of Superior Courts will now also consist of certain members of Parliament, thus the Executive, through the Legislature, has found a way to interfere with the appointment of Judges. Similarly, with regard to the appointment of the Chief Justice, the new Amendment provides for a Special Parliamentary Committee that would select the Chief Justice, who, as per the Amendment, will have a fixed tenure of three years.

It is obvious, therefore, that after the promulgation of the 26th Amendment, it is the Parliament that will have a dominant say in the selection of the Judges of the Supreme Court and the Chief Justice; hence, it is the Executive, which by virtue of its majority in the Parliament, will be in a position to influence the Judiciary to its advantage. Currently, the 26th Amendment is under challenge before the Supreme Court. The crucial question is whether the post-26th Amendment Judiciary will be able to rise to the occasion to preserve the independence of the Judiciary in the true sense of the word, or would it be debilitated by the emergence of dissention amongst the members of the Judiciary itself, as the recent trends show. Only time will tell.

A Threat to Judicial Independence and Human Rights

The 26th Amendment has significant implications for the judiciary and human rights and could undermine judicial independence, the rule of law, and human rights protection. Key changes include altering the structure of the Judicial Commission of Pakistan, introducing political representation, reducing judicial influence, and forming a Special Parliamentary Committee to select the Chief Justice. These changes could erode judicial independence, undermine the rule of law, and jeopardize human rights protection. International standards like the ICCPR and UN Basic Principles may be contravened.
To address the concerns raised by the 26th Constitutional Amendment, we recommend the following:
· Safeguard Judicial Independence: Ensure the judiciary remains independent and impartial, free from political influence and pressure.
· Transparent and Merit-Based Appointments: Implement transparent and merit-based appointment processes for judges, ensuring that the judiciary comprises qualified and impartial individuals.
· Clear Grounds for Removal: Define clear and specific grounds for judge removal, ensuring the process is fair, transparent, and free from political bias.
—Sharmin Osmany

Bespoke Amendment

The Constitution of Pakistan has “undergone” twenty six Amendments in more than five decades. The political dispensation of the day and those who wield power take liberty to fashion it as per their own conception or agenda.

The 26th Amendment was passed at turbo speed which is a manifestation of radical restructuring of the Constitution. The rationale is to streamline the judicial ecosystem and establish the Executive’s writ. There was brouhaha by the legal fraternity castigating the Parliamentarians, that it is primarily to cut wings of judiciary and to handicap the freedom, dominion and space enjoyed by the jurists as their constitutional rights and prerogatives, but the die was cast. The judiciary has been mandated to inculcate efficiency in the system, a much needed requisite because of ship load of pending cases in all courts, from District to Supreme.

The future of the judicial environment should showcase constitutional sincerity instead of political machinations, compromised ethical behavior, or apparent indifference towards the separation of powers as enshrined in the Constitution.
—Majyd Aziz