The three pillars of a state and the doctrine of trichotomy of power are fundamental concepts that one would be taught in his first class of political science. Separation of powers between the three pillars i.e. Legislature, Executive, and Judiciary, is one of the essentials of a strong democracy. It is this concept that ensures the independence of the judiciary—the very independence that allows the judiciary to prevent the state from encroaching upon the rights of the people or violating the social contract—the Constitution.
Though absolute separation of powers is unachievable there are certain overlaps among the powers of these pillars of the state. The Constitution of Pakistan maintained a decent balance between these overlaps. Before the recent 26th amendment, one of the constitutional provisions keeping these overlaps in equilibrium was Article 175 A (3), which enshrined the guiding principle for the appointment of the Chief Justice of Pakistan. In light of this, the most senior judge of the Supreme Court was appointed as the Chief Justice of Pakistan. However, the transition in this process made by the 26th Amendment is anticipated to disturb the balance between the powers among the pillars of the state.
Chief Justice Sajjad Ali Shah and the Malik Asad Ali Case
The appointment of the Chief Justice of Pakistan along with the appointments of judges in the Supreme Court and High Courts has always been a hot subject of discourse in the history of Pakistan. Our history cannot disregard events like those that unfolded in 1997 when a ten-member bench of the Supreme Court declared the appointment of the then Chief Justice, Sajjad Ali Shah, unconstitutional and sent him home.
History entails the mockery of the state made when two separate cause lists were issued from the same Supreme Court and when one bench restrained the Chief Justice from exercising his powers while another bench headed by the Chief Justice suspended it. It must be mentioned here that Justice Sajjad Ali Shah was appointed as the Chief Justice by Benazir Bhutto while superseding three senior judges of the Supreme Court. The principle of seniority in the appointment of the Chief Justice was affirmed by the Supreme Court in the Malik Asad Ali Case when it stopped Justice Sajjad Ali Shah from continuing as the Chief Justice of Pakistan and declared his appointment as the Chief Justice void.
Abolition of the Seniority Principle
The 26th Amendment in the Constitution of Pakistan prescribes a change in the process of appointment of Chief Justice. According to this, the Chief Justice of Pakistan is to be nominated by two-thirds of a parliamentary committee comprising twelve parliamentarians, but the appointed Chief Justice must be among the three most senior judges of the Supreme Court. Moreover, it also amends the composition of the Judicial Commission of Pakistan and includes four parliamentarians in it whereas it also provides the Judicial Commission of Pakistan the mandate to constitute the recently born constitutional benches and the authority to analyze the performance of the judges. It is worth mentioning that the parliamentary committee for the appointment of the Chief Justice shall entail proportional representation of the parliamentary parties which means that the treasury benches would have the most representation in this committee.
This creates an apprehension that the authority delegated to the parliamentary party will austerely affect the independence of the judiciary. This provides the government with a tool, by using this parliamentary committee, to choose such a judge among the panel of three who submits to the same ideas and political thought as of those in the government or from whom they expect the most convenient judgment. The seniority principle ensured that the appointment of the Chief Justice was not influenced by other preferences.
Returning the Favor
In the case, Supreme Court Advocates-on-Record vs. Union of India, the Supreme Court of India struck down the National Judicial Appointments Commission Act and the 99th Amendment in the Constitution of India, which provided for a judicial commission for the appointment of judges including the Union Minister for Law and Justice. In this judgment, the author judge, Justice Jagdish Singh Khehar, made the following observation:
“The political executive, as far as possible, should not have a role in the ultimate/final selection and appointment of Judges to the higher judiciary. Specially keeping in mind the enormity of the participation of the political-executive, in actions of judicial adjudication. Reciprocity, and feelings of payback to the political-executive, would be disastrous to independence of the judiciary.”
Similarly, how can there be no apprehension of reciprocity and the desire to pay back when the Chief Justice is appointed by a parliamentary committee in which the ruling political party or parties will be a majority? Won’t that Chief Justice also return the favor?
Conclusion
Therefore, now the appointment of the Chief Justice will initiate a political farce. Politicians would tend to opt for such a Chief Justice who is most compatible and propitious to their cause. After this amendment, how can we expect the judiciary to make any strict decision against the state, the executive, or any political party? On the contrary, most judges of the apex court would aspire to be the chosen ones for the politicians. As far as I can discern, this amendment in the constitution is a serious encroachment upon the authority and independence of the third pillar of the state—the Judiciary, by the first two. Furthermore, I will reiterate the well-acknowledged notion that personality-oriented legislation has always destroyed institutions instead of strengthening them. I shall conclude my argument with the following words of Montesquieu.
“There is no liberty if the judiciary power be not separated from the legislative and executive.” – The Spirit of Laws (1784)
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Malik Mohammad Ali is a student of Law at Bahria University Islamabad.