Last week, the government circulated a draft of the 26th constitutional amendment of Pakistan. The draft is being termed an attack on the independence of the judiciary and has also raised concerns about the mala fide intention of the government.
“Constitution is not a mere lawyer’s document, it is a vehicle of life and its spirit is always the spirit of age.”
– B.R. Ambedkar
Firstly, the timing of the amendment must be kept in mind. The amendment, yet to be tabled, has been broadcasted when the retirement of the Chief Justice of Pakistan (CJP) is just around the corner. It goes without saying that any ordinary or constitutional legislation, must not be made person-specific. Any law that is made individual-specific, except for the protection of women and children, would stand violative of Article 25 of the Constitution of Pakistan. However, the current amendment paves the way for the incumbent CJP to be appointed as the first Chief Justice of the prospective Federal Constitutional Court (FCC) even after his retirement as the age of superannuation is set at sixty-eight.
Secondly, the establishment and the process of appointment of judges of the FCC stated in the concerned draft augment the apprehensions relating to the independence of the judiciary. The FCC replaces the original jurisdiction (disputes between governments, direct petitions, or on its own motion relating to the enforcement of fundamental rights) of the Supreme Court, and all such cases now shall stand transferred to the FCC.
The first chief justice of the FCC shall be handpicked by the Prime Minister and be appointed by the President. Likewise, the initial appointment of judges shall be made by the President in consultation with the first chief justice (Prime Minister’s man) raising concerns about the transparency of appointments.
The role of the judicial commission will only come into play in subsequent appointments to the FCC. The commission shall consist of thirteen members—including the first chief justice and five senior-most judges, federal law minister, attorney general, and two parliamentarians from treasury benches (one from both the Senate and the National Assembly). Simply put, the government will have a clear majority in the commission.
Adding insult to injury, the proposed amendment provides that the future chief justice of the FCC may not be appointed based on seniority but on the recommendation of the National Assembly Committee choosing from the three senior-most judges. Consequently, the one who makes the best bargain with the government shall be appointed as the Chief Justice of the FCC. In short, we can call it a federal government constitutional court in lieu of the FCC.
The draft destroys a salient feature of our Constitution i.e. independence of the judiciary from the executive and legislature. The concept of trichotomy/separation of powers has been compromised in the said draft. It outlines that no constitutional amendment can be challenged in any court, including the FCC, the Supreme Court, or the High Court. Any judgment or order pertaining to the challenge shall be void and of no legal effect. However, in the Mahmood Khan Achakzai Case, the apex court held that federalism, Islamic provisions, parliamentary form of government, and independence of the judiciary are salient features of the Constitution and cannot be altered, amended, or removed from the Constitution even by the parliament. Furthermore, in the famous District Bar Case, the minority view was that the constitutional amendment can be struck down if it is against the salient features of the Constitution.
Thirdly, the proposed draft cuts off all the real powers of the Supreme Court of Pakistan. The SC is devoid of its original and advisory jurisdiction and can hear cases only through its appellate jurisdiction. To make things worse, the SC cannot even exercise its appellate jurisdiction on appeals arising from writ petitions to the High Courts under Article 199.
Moreover, the decisions of the FCC shall be binding upon the SC but not vice versa. If any jurisdictional issue arises between the SC and FCC, the decision of the FCC shall be final. Notably, all executive and judicial authorities shall act in aid of the FCC now. It puts up the question that now whether executive and judicial authorities are constitutionally mandated to enforce the orders of SC. Can they exercise discretion in enforcing the judgment? What is the sanctity of the order of SC?
Fourthly, the proposed amendment tampers with the autonomy of the High Courts. The government-appointed judges of the FCC shall have the power to transfer cases from one high court to another or to itself. Besides this, the FCC shall also have the power to transfer one high court judge to another without his consent. This move will better help the government to keep in check the uncooperative judges. Furthermore, no court, even the FCC, shall have the power to call into question any action done by a public official under the disguise of national security laws.
Lastly, the only good thing about the 26th amendment is the addition of the “Right to a Clean and Healthy Environment.” It is inferred that this right shall be absolute and will not include the infamous reasonable restriction clause.
In a nutshell, the proposed draft is a complete package of how to make a mockery of the judicial system. Ironically, it reduces the backlog of cases by adding an extra layer of super-supreme court in the judicial hierarchy. If enacted in its original sense, it would dismantle any ounce of independent judiciary, if there is any.
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