It is increasingly clear that the events that preceded the passage of the 26th Constitutional Amendment have, among other things, added to political instability in the country in a meaningful manner.
But before I advance my argument I would like to point out that establishing a system of trichotomy of powers, the Constitution assigns the Supreme Court the unique responsibility of maintaining harmony and balance between the three pillars of the State; namely, the Legislature, the Executive and the Judiciary.
Since most of the changes are related to Supreme Court and high courts, the apex court appears to have been deprived of that ‘unique’ responsibility of maintaining harmony and effecting balance, however delicate and subtle, between the three pillars of state.
The Amendment has adversely impacted the ideal of harmony by bestowing upon the Executive in particular and the Legislature in general the powers that they actually do not deserve, to say the least.
The Amendment without doubt has clearly undermined the independence of judiciary. Here one must not lose sight of the fact that the independence the 1973 Constitution had envisaged for the judiciary had received a major boost through the 18th Constitutional Amendment of Constitution.
Ironically, an almost identical set of political parties or forces had worked harder to add to judiciary’s independence through the 18th Amendment a decade ago and earlier through the adoption of Charter of Democracy (COD).
It is important to note that the International Commission of Jurists (ICJ) has strongly reacted to the passage of 26th Constitutional Amendment into law, describing it as “blow to judicial independence, the rule of law, and human rights protection” in Pakistan.
Needless to say, ICJ is a non-governmental organization of leading judges and lawyers from around the world working to advance the rule of law and realization of human rights for all.
The ICJ has pointed out that “the 26th Constitutional Amendment makes significant institutional changes in the structure and functioning of Pakistan’s judicial system, particularly with respect to the Supreme Court and High Courts.
In this regard, Santiago Canton, ICJ’s Secretary General, has plausibly argued that “These changes bring an extraordinary level of political influence over the process of judicial appointments and the judiciary’s own administration. They erode the judiciary’s capacity to independently and effectively function as a check against excesses by other branches of the State and protect human rights.”
Be that as it may, how ironic, however, it is that the incumbent Chief Justice of Pakistan (CJP), who is widely known for his independent thinking or his reputation of having the confidence to draw on his own innate intelligence and depend on his own judgment, has acquiesced to this overt Executive-Legislature machination against one of the three organs of the state, the judiciary. Concluding, let me raise a question: does this Amendment truly represent the acknowledgment of the will of people?
Jahan Ara Qizlibash (Islamabad)
Copyright Business Recorder, 2024
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