In 1776, the Constitution of the United States of America was adopted, and subsequently, a series of amendments were created, culminating in a total of 27 amendments to the American Constitution. Whereas in contrast, after the inception of Pakistan, 1947, the Constitution of Pakistan of 1973 has undergone a total of 26 amendments. The Prime Minister of Pakistan expressed congratulations to the entire nation for reaching this significant milestone. While some celebrate this achievement, others find themselves in complete despair, a sentiment I do not share, and I will elaborate on this later.
You might recall that a couple of months ago, the Parliament experienced a significant upheaval; a bill was introduced to table the 26th Constitutional amendment, and discussions turned into numerical representations. To meet these objectives, the government engaged in extensive lobbying. A glimmer of hope was presented to the government, suggesting that even if the JUI does not assist it, it could form a splinter group from Pakistan Tehrik-e-Insaf and garner votes from there. The narrative was straightforward. However, the JUI has been inconsistent, oscillating between alliances with the PML(N), the PPP, and the PTI at different times. But now, the newly established framework of the Apex Court has been documented; however, it has led to heightened confusion across all corners.
The proposed amendment poses a significant threat to both Baba Rehmatah and the existing balance of power, undermining the principle of separation of powers that is fundamental to democracy, where checks and balances are essential. It is important to note that one of the key changes is that the authority for suo motu actions, as outlined in section 184(3), now resides with the Constitutional Bench rather than the Supreme Court itself. Under this amendment, the selection of a Chief Justice now requires a two-thirds majority from the parliamentary appointments committee. In this instance, only one member opposed the nomination, while the remaining members supported it, resulting in the appointment of the Chief Justice of Pakistan.
Moving forward, a total of 22 articles have been added to the list. The Constitutional Petitions will now be heard by the Constitutional Bench and the tenure of the Chief Justice has been fixed for 3 years. Moreover, the Supreme Court possesses the authority to transfer a case from one High Court to another or to summon it to its own jurisdiction. I find this position untenable. Primarily because it undermines the integrity of our judicial hierarchy, rendering it ineffective. Consequently, it is likely that every case would be escalated to the Supreme Court through undue means. Additionally, the introduction of Article 191A, which establishes a new bench designated as a constitutional bench, also raises concerns, particularly as the tenure of its members remains undisclosed. The new Constitutional bench will not adhere to the principle of seniority, as it has been stipulated that there will be equal representation from each province.
This major change has been criticised within the Supreme Court structure, where minimal and negligible changes were observed in the parliamentary committee formation. This is a massive change. There will be 12 members in the committee; four will come from the National Assembly and four from the Senate. The parliamentary committee will now finalize decisions under the seniority principle that the judiciary typically maintains. However, now this right is shifted from the judiciary to the executive branch. The powers of the executive branch will be broadened, disrupting the balance of power. Separation of powers will be affected, undermining democracy as there will be counter-checks from politicians on the judiciary. The judiciary will check politicians, while commentators and lawyers will argue over the executive aspect. Judicial independence will face trials; the High Court judges’ performance will be evaluated annually under the Judicial Commission of Pakistan. All these developments point towards constitutional amendments that directly influence judicial independence, emphasizing the need for complete independence and clarity in decisions moving forward.
Power must be maintained wherever it exists. If the constitutional court holds power, we deserve to know. If the Supreme Court wields power, that should be made clear. If the High Court possesses power, it should be communicated. If politicians are in positions of power, transparency is essential. Whatever it is, it is an intra-elite fight, let them destroy each other with fake political discussions that is just an intra-elite conflict, don’t become the fuel of the fight when it is of the elites.
The judiciary has historically held a dominant role in the process of appointing judges in Pakistan. However, this essential equilibrium has been significantly altered by the 26th Constitutional Amendment, which now provides the executive with a majority in the Judicial Commission of Pakistan. This remarkable change in the JCP’s composition presents serious dangers, such as the possibility of political appointments and the appointment of judges who may not be ideologically committed to upholding the rule of law. Appointments made without a clearly established and transparent set of guidelines will diminish public trust in the judiciary, jeopardize its independence, and weaken its capacity to serve as an impartial arbiter of justice. The process of selecting and appointing judges should be systematic and well-founded, ensuring that it is not susceptible to capricious or politically driven choices.
At the end of every article, I always mention that if you are using these two camps as a mindless part to abuse each other, you are wasting your time. There is no difference between being a reformer and not being one
This is our verdict at the end. You may agree with this or not. But ultimately our verdict is that if someone is saying that this constitutional amendment will put a strain on the freedom of the court and if someone is not performing, then snatching their freedom is not the answer, then I don’t agree with you.
Power must be maintained wherever it exists. If the constitutional court holds power, we deserve to know. If the Supreme Court wields power, that should be made clear. If the High Court possesses power, it should be communicated. If politicians are in positions of power, transparency is essential. Whatever it is, it is an intra-elite fight, let them destroy each other with fake political discussions that is just an intra-elite conflict, don’t become the fuel of the fight when it is of the elites.
