Lawyers describe it as naked politicisation of the judiciary

A protest by Pakistani lawyers

The amendment also seeks to insert Article 202A, envisioning similar benches in the high courts, for which judges would be selected along similar lines

Supreme Court lawyer Moiz Jaferji said that Pakistan’s judiciary continues to suffer from the same basic problem, namely, the subjugation of the judiciary to the executive

Through the 26th Amendment (26A) to the Pakistan Constitution, the county’s parliament and the executive have tightened their control over the judiciary, an institution that has been a thorn in their side since the days of military dictator-President Pervez Musharraf (1999-2008).

As expected, the community of lawyers has condemned the 26A, which was passed with an overwhelming majorities in the National Assembly (the Lower House) and the Senate (the Upper House) on Monday.  

Lawyers see 26A as “naked politicisation of the judiciary,” which is the last resort for a citizen seeking justice and enforcement of his constitutional and human rights, which tend to be ignored or crushed by politicians and the bureaucracy acting in cahoots.

26A Key Provisions

A key feature of the 26A is that the suo motu jurisdiction previously granted to the Supreme Court under Article 184 of the Constitution, will now be exercised by Constitutional Benches of the Supreme Court.

More on the constitutional branches will be given later in this article.

The main thrust of the 26A is to give parliament a greater role in the way judges are appointed to the Supreme Court, including the selection of the Chief Justice.

An amendment to Article 175A of the Constitution reconstitutes the Judicial Commission of Pakistan (JCP) with the inclusion of four Members of Parliament — two each from the Treasury and Opposition, one from the National Assembly and the other from the Senate.

Earlier, the committee consisted of five Supreme Court judges (including the Chief Justice as its chairman); the Attorney General of  Pakistan, the Federal Law Minister;  a former Chief Justice and a senior advocate nominated by the Pakistan Bar Council.

26A also changes the method of appointment of the Chief Justice of Pakistan (CJP). Earlier, the senior most judge of the Supreme Court was automatically appointed as the CJP. But now, a Special Parliamentary Committee will pick one name from the three senior-most judges of the Supreme Court. From these, the committee will suggest one name to the Prime Minister, who will subsequently submit it to the President for appointment.

This parliamentary committee will have eight MNAs and four Senators, who will be selected in proportion to the number of their parties’ seats in the two houses.

The Chief Justice’s term, due to changes to Article 179 of the Constitution, has been set at three years, unless he resigns sooner, attains the age of 65 or is removed from office. Even if the CJP hasn’t reached 65 years, they would still stand retired at the end of their three-year term.

26A also empowers the Judicial Commission of Pakistan to evolve criteria for assessment, evaluation and fitness for appointment of judges. If a high court judge’s performance is deemed “inefficient,” an improvement period will be granted. If the judge fails to improve, a report will be submitted by the JCP to the Supreme Judicial Council (SJC), which is the forum with the authority to remove judges over misconduct.

Additionally, the minimum age requirement for the appointment of High Court judges has been reduced from 45 years to 40 years.

Constitutional Benches

26A creates a new Article 191A, titled ‘Constitutional Benches of the Supreme Court’. These constitutional benches will be “comprising such Judges of the Supreme Court and for such term as may be nominated and determined by the Judicial Commission of Pakistan from time to time”. The most senior judge from among the judges will be the ‘Presiding Judge’.

In addition, the SC’s advisory jurisdiction, under which the president can seek the court’s opinion by referring matters to it, will also be dealt with by the constitutional benches.

The amendment also seeks to insert Article 202A, envisioning similar benches in the high courts, for which judges would be selected along similar lines.

While the draft does not mandate that provinces form similar benches in their respective high courts, an amendment introduced by Law Minister Azam Nazeer Tarar on the floor of the Senate said that the four provincial assemblies — and the National Assembly in respect of the Islamabad High Court — can adopt resolutions setting up constitutional benches in their respective high courts.

Lawyers Slam

Senior lawyers compared the previous system with the new one very unfavourably. They describe the 26A as “judicial capture by politicians”.

Barrister Asad Rahim told Dawn that 26A has dealt a “body blow to Pakistan’s democracy.” He said: “Appointments of judges have been handed back to the Executive, which — as our history is witness — should have no part in such a selection. The method for handpicking the Chief Justice of Pakistan, among a list of three, will ensure a game of thrones every few years, thus wrecking a system that was until now immune to such intrigue. The Executive will naturally prefer pliant or partisan candidates.”

Supreme Court lawyer Moiz Jaferji said that Pakistan’s judiciary continues to suffer from the same basic problem, namely, the subjugation of the judiciary to the executive.

“The executive is still picking a Chief Justice. A parliamentary committee is determining which superior court judge can hear constitutional matters. These are direct attacks on judicial independence. The new system suffers from the same flaw that the original amendment did, in that judiciary is made subservient to the legislature and the executive.”

“Where the first amendment draft spoke of the first Chief Justice to be appointed by the prime minister, the intervention of a parliamentary committee is now to be a continuous process. The design is an attempt at bringing independent judges to heel. Championed by politicians in the name of parliamentary supremacy, it is clear to everyone where the actual interest lies.”

“An election has been stolen. There is a government crowned with an illegitimate mandate. The Constitution must now pay the price lest the right to that crown be fairly adjudicated,” Jaferji said.

According to lawyer Rida Hosain since the government commands the majority in the parliamentary committee, and the government will have a majority say in the appointment of the CJP, there will be a clash of interest when the government is a party before the Supreme Court.

“A litigant (the government) cannot choose the head of the institution where it will appear as a party,” Hosain pointed out.

On the commission with government representatives that will ‘evaluate’ the performance of superior court judges, Hosain said that it is “tantamount to giving the government the right to punish and reward judges. The government may render an adverse evaluation to target a judge that has given decisions against them.”

“The amendments are a huge blow for judicial independence. The professed aim of the amendments is to ‘depoliticise’ the judiciary. In fact, the amendments do the exact opposite. This is not depoliticising; this is an attempt to exert control and influence over the superior judiciary. An attack on judicial independence is an attack on fundamental rights — a judiciary that is not independent cannot dispense justice without fear or favour. This impacts all citizens,” she stressed.

“The proposed Constitutional Amendment betrays the government’s desire to emasculate the judiciary by giving the government’s members a majority on the judicial commission,” said lawyer Mirza Moiz Baig.

“Such concerns are further aggravated by the stipulation that the Chief Justice will be selected from a panel of three by a parliamentary committee with proportional representation. The government of the day would, thus, have a majority on not only the judicial commission selecting judges to the superior judiciary but also on the parliamentary committee selecting the CJP,” Baig pointed out.

It appears that the perineal battle between Pakistan’s judiciary on the one hand and parliament and the executive on the other will continue.