No sooner had Parliament passed the 26th Amendment that it began to use it. The day after it received the presidential assent, the Parliamentary Committee for the appointment of the Chief Justice of Pakistan met, and though the PTI members had been duly named to the Committee, they refused to be part of the process. The passage itself was made with the help of five floorcrossers in the National Assembly, but none in the Senate. Already, the PTI has promised to take action against them, though they might claim to be independents. While PTI desertions were not needed in the Senate, BNM votes were needed, even though party chief Akhtar Mengal has said he will send references against the lot, as a result of which one Senator has sent in his resignation.
The Parliamentary Committee’s first hurdle was the boycott of the proceedings by the PIT and SIC members. The boycott was probably a principled reflection of the PTI’s stand, whereby it has already challenged the amendment on the ground of the basic structure doctrine, which says that even amendments to the Constitution may be struck down by the Supreme Court if they are inconsistent with the basic structure of the Constitution. It is perhaps anomalous enough that members were nominated at all by the Opposition, but for it to be part of the proceedings would have invalidated its stand. PTI parliamentary party leader Gohar Ali Khan’s complaint of being allocated fewer numbers seems a mere quibble in view of the fact that the PTI does not recognise the amendment at all. Mr Khan is the one who has said that the PTI would repeal the amendment when it came back to office.
It could be argued that the amendment was carried out in haste. More serious is the perception that the appointment of the CJP has been given back to the Executive. While a parliamentary committee has been set up, the decision is to be by a majority, which would normally be the government’s. However, this giving of the power to a committee is a far cry from the past, when the Prime Minister, very much the head of the executive, would sign a file and that was it. The procedure is still far from perfect, but there has been some attempt made to pull back the judiciary. Amidst all the hullabaloo, it seems as if an important milestone for the government has been overcome, that of escaping an embarrassing failure.
