The PMLN-led coalition government has recently passed the 26th constitutional amendment, sparking debate among the legal fraternity as well as the political circles of Pakistan. Consequently, the government faced major backlash from the opposition and several bar associations, who strongly criticized the hastiness of the process through which these amendments sailed through both houses of the parliament. The bill, initially containing 52 clauses, reached its final stage with amendments to 26 clauses of the 1973 constitution, partially due to the political intervention made by the chief of JUI-F, Maulana Fazl-Ur-Rahman, supported by other political factions. Some of the major changes introduced in the constitution include the creation of separate constitutional benches in the Supreme Court, changes to the composition of the Judicial Commission of Pakistan, the procedure of the appointments of judges, the selection of the Chief Justice of Pakistan from the senior-most judges, and the removal of judges on the grounds of inefficiency.
The Removal of the Suo Moto Powers:
Firstly, the government has struck down the suo moto powers of the high courts as well as the Supreme Court, given under Article 184(3) and Article 199 of the Pakistani Constitution, respectively. In the past, it has been observed that the apex courts tend to misuse this power under the guise of protecting the citizens’ fundamental rights, hence facing criticism from lawmakers for meddling in the executive affairs. The PML-N government and its allies keenly advocated for a decrease in the role of the judiciary in government matters and the law-making powers of the parliament. Under that provision, the Supreme Court would annul the acts of the parliament on the pretext of their unconstitutionality and procedural technicalities. In the absence of suo moto powers, there will be separate constitutional benches within the Supreme Court to deal with cases of constitutional interpretation, declaring the validity or invalidity of parliamentary statutes. The members of this constitutional bench will be drawn by the Chief Justice and the Judicial Commission of Pakistan, with a judge at the presiding seat of the constitutional bench.
Critics are terming it as the creation of two parallel apex courts in the country, arguing that it amounts to sowing the seeds of discord among the judges of the Supreme Court. Moreover, senior puisne judge, Justice Mansoor Ali Shah, has candidly remarked in a case:
“It seems that judges not part of the constitutional bench are inferior to their counterparts, as they cannot even discuss a constitutional question during the hearing of civil and criminal petitions.”
This is a serious argument against the creation of the constitutional courts, as it bifurcated the Supreme Court judges based on their expertise in constitutional matters; however, one must also bear in mind that these are speculative assumptions, as the formation of the constitutional benches may help in decreasing the workload of other judges of the Supreme Court, who could, in turn, dispose of the criminal and civil appeals expeditiously.
Facts demonstrate that the majority of litigants bring civil and criminal appeals to the Supreme Court. On the other hand, it is usually the political parties who bring cases of constitutional interpretation to the Supreme Court, often when a provision goes against them. The masses are more concerned with the civil and criminal cases; therefore, the formation of the constitutional benches may not entirely be a bad idea, as it may alleviate the burden of other judges. However, only time will tell whether these benches are a mere tool of political favoritism or if they are genuinely performing their primary function: that of checking the constitutional legitimacy of governmental actions.
Changes to the Criteria of the Appointment of Judges
Secondly, these amendments have drastically changed the criteria for the appointment of the Chief Justice of Pakistan. Previously, the senior-most judge of the Supreme Court was automatically appointed as the CJP by solemnizing an oath. From now onwards, the appointment of the CJP will be done from amongst the 3 senior-most judges of the Supreme Court. A special parliamentary committee, comprising 8 MNAs and 4 senators, will choose the chief justice. This amendment has been highly criticized by the legal fraternity and the opposition parties, stating that it will create a tradition of appointing favorites and politically suitable Chief Justices, who will be prima facie aiding the government in its bid to pass politically suitable laws, simultaneously silencing the dissenting voices. The doctrine of the ‘Separation of Powers’ is the foundational principle of Pakistan’s constitutional landscape, according to which the judiciary must always work separately from the executive. When the executive starts appointing the Chief Justice and other judges of the higher courts, one is forced to contemplate how such handpicked judges will ensure the accountability of executive action. A practical manifestation of hand-picked judges can be observed in the USA, where some judges appointed by Donald Trump refused to rule against him in the ‘hush money’ scandal and the 2021 election case. Some of those judges argued that the presidential immunity was the reason behind their refusal to prosecute Trump; however, the critics argued that the main reason was their political inclination towards him. Ultimately, the notion of power separation has been put at stake by this amended provision, as it can give rise to favorable outcomes for the government in politically sensitive cases.
Furthermore, the government has expanded the scope of judges’ removal by the Supreme Judicial Council on the grounds of inefficiency. Generally speaking, inefficiency is quite a wide term, generally translating to a failure of performing the assigned duties effectively. This government initiative raises concerns as it may be used as a pretext to remove independent and honest judges who refuse to favor governmental actions through their judgments. Before these amendments, the judges of the Supreme Court could only be removed on the basis of misconduct or in the case of being charged with a criminal case. They could not be sacked from their office based on an unfavorable decision or due to their inclination towards any political party. Presently, however, there is a likelihood that sitting governments may send home any unfavorable or politically disliked judge on the grounds of displaying inefficiency.
What Must Be Done
Conclusively, the government is facing severe backlash over the passing of these controversial constitutional amendments from the upper echelons of the judiciary as well as the top-tier bar associations such as the Karachi Bar, the Supreme Court Bar, the Islamabad Bar, and the Lahore Bar. These amendments aim to revamp the entire fabric of the constitutional scheme in Pakistan and enhance the role of the executive in judicial appointments and court proceedings. While crippling the suo moto powers of the Supreme Court may be a good step to avoid judicial overhaul in the legislative and executive matters, the creation of separate constitutional benches has posed a big question mark on the judicial independence and doctrine of checks and balances. The government should amend the controversial clauses, engage with the relevant stakeholders, and avoid overstepping the judicial process in order to ensure democratic governance, the rule of law, the protection of human rights, and judicial independence in the country.