Unpacking the amendment
SUCCESSIVE governments and parliaments in Pakistan have appeared obsessed with constitutional amendments related to the judiciary, especially the superior judiciary. Our parliament has so far passed 23 constitutional amendments.
Formally these are counted as 26 despite the fact that three (the ninth constitutional amendment of 1985, the 11th of 1989 and the 15th of 1998) were introduced but never passed. Out of these 23 amendments, a majority of 13 or 56 per cent have to do entirely or partly with the judiciary. Eight amendments almost exclusively deal with the judiciary, while the remaining five are a mixed bag with a number of subjects including the judiciary. In stark contrast, India’s parliament has passed 106 constitutional amendments so far and only 11 or a little over 10pc deal with the judiciary.
These amendments passed in Pakistan can be viewed in the context of the ever-present power tussle between the executive and the judiciary. Since the executive is a subset of parliament in a parliamentary democracy practised in Pakistan, and a majority of parliamentarians are associated with the executive, parliament and its committees do not exercise any real oversight of the executive. The majority ruling party or parties expect their parliamentarians to go soft on their government during the proceedings of the plenary and standing committees; almost always, the members seem to oblige. In such a scenario, the only other institution which can and should independently hold the federal and provincial governments to account is the judiciary, especially the high courts and the Supreme Court. Most governments are, therefore, keen on finding a way to blunt the judicial weapon of accountability — hence, such a large percentage of judiciary-related constitutional amendments in Pakistan.
To be fair, however, it has not always been the judiciary on the receiving end; there are times when the judiciary also apparently ‘encroaches’ on the turfs of parliament and the executive. This description was used by Asif Saeed Khosa, a former chief justice of Pakistan, who repeatedly pleaded for a ‘grand dialogue’ to check encroachment by the judiciary, parliament, the executive, the military and intelligence agencies in each other’s domain.
It was the Supreme Court which endorsed the death sentence of former prime minister Zulfikar Ali Bhutto in 1979. It was also the same apex court, of course comprising different judges, which declared in 2024 that Mr Bhutto was not given a fair trial by the Lahore High Court and the Supreme Court. The Supreme Court also sacked two elected prime ministers of Pakistan; Syed Yousuf Raza Gilani in 2011 and Nawaz Sharif in 2017 on grounds largely believed to be less than legitimate. Chief justice Saqib Nisar’s Supreme Court went on to disqualify Nawaz Sharif for life and to hold him ineligible to head his party the PML-N, although there was no such provision in the Constitution. Justice Umar Ata Bandial’s Supreme Court grossly misinterpreted the constitutional provision of Article 63-A about the defection of parliamentarians. All such judgments had to be later reversed. The Supreme Court is also criticised for upholding four grossly unconstitutional acts of dismissal of elected governments and military takeover.
Most governments want to find a way to blunt the judicial weapon of accountability.
This is the background against which the 26th Amendment was proposed and eventually passed by parliament. The bill was first introduced in the Senate on Sunday, Oct 20, and the hectic process of going through the first, second and third readings continued till a little before midnight. The process concluded in the National Assembly in the early hours of Monday, Oct 21. The president assented to the law and the Act of Parliament was notified in the Gazette of Pakistan the same day.
The bill could be partly categorised as ‘reactive’ to the real or perceived ‘encroachment’ by the judiciary and partly ‘preventive’ to forestall possible future acts of the judiciary, which may threaten the existence of the current government and National Assembly, with some ministers saying on media that they expected such action by a section of the judiciary after the retirement of chief justice Qazi Faez Isa on Oct 25, 2024. This explains the indecent haste with which the package of constitutional amendments was rushed through the two houses of parliament.
The 26th Amendment has either amended, substituted, or added 25 articles and one schedule of the Constitution out of which only nine articles deal with subjects other than the judiciary. Three of the amended articles deal with religious provisions and may be categorised as ‘riders’ using the American slang for amendments incorporated to win the support of more legislators and political parties for the package. These three amendments were proposed by Maulana Fazalur Rehman’s JUI-F.
The most important changes introduced in the Constitution through the amendment include the appointment of the Supreme Court chief justice through a 12-member parliamentary committee, instead of the senior-most judge of the court automatically becoming the top judge; the retirement of the chief justice at the age of 65 or on completing a three-year term, whichever occurs first; the introduction of constitutional benches in the apex court to be constituted by the Judicial Commission from time to time and in the high courts, subject to the approval of the respective provincial assemblies; reconstitution of the 13-member Judicial Commission after merging the erstwhile parliamentary committee in it; an annual performance evaluation of high court judges by the Judicial Commission; provision for a secretariat headed by a secretary for the commission; and lowering the minimum age to qualify for becoming a high court judge from 45 to 40 years.
These amendments, no doubt, increase the influence of the legislature and the executive in key aspects of the judiciary. Will the legislative and executive branches use the newly acquired powers maturely and strictly on the basis of merit, or allow personal and political considerations to colour their judgments? The jury is out on this question.
The writer is president of the Pakistan-based think tank Pildat.
X: @ABMPildat
Published in Dawn, October 27th, 2024