EDITORIAL: At long last the government’s attempts to pass the 26th Constitutional Amendment have come to fruition, with the National Assembly approving the crucial piece of legislation in the early hours of October 21 after the Senate had also passed it a day earlier.
Following its previous botched attempt at steamrolling the amendment through parliament, the ruling coalition, this time around, had the sense to try to forge consensus on a matter that will likely have huge ramifications – the legislation will significantly reshape the relationship the judiciary has with the executive and the legislature, and the balance of power within the state.
Notwithstanding the misgivings being expressed regarding the amendment’s various provisions, the ruling coalition must still be commended for its diligent efforts to bring about a broad-based consensus on a matter of far-reaching importance.
By doing away with the more contentious elements of the previous version, it demonstrated a commitment to compromise, and avoided the crude tactics that have often marred parliamentary processes.
Admittedly, there have been accusations of coercion by some opposition lawmakers, these were at least not evident during the actual voting process. Bilawal Bhutto-Zardari, especially, proved his mettle as a political negotiator of some skill as he successfully obtained the critical support of Maulana Fazlur Rehman.
The amendment’s passage, however, inevitably highlights our complicated and chequered constitutional history. Whether it was the short-lived 1956 constitution, the one imposed by a military dictator in 1962, or the 1973 Constitution that finally established Pakistan as a parliamentary democracy, albeit one that faced numerous challenges — including being suspended and held in abeyance by military dictators and altered repeatedly to serve the interests of those in power — these events reflect the tumultuous, painful trajectory of our constitutional history.
The overarching reality that comes to the fore is of our tendency to swing between various extremes, and this propensity is again exposed by the 26th Amendment’s passage. While there has been extensive commentary on the judiciary’s oversized role in recent years — particularly regarding appointments to the superior courts, the composition of the Judicial Commission of Pakistan (JCP), and verdicts that have effectively rewritten the Constitution, such as the 2022 ruling on Article 63-A — the attempt to rein in these powers through the 26th Amendment will likely see the polity swing to the other extreme, where the government will now have a primary role in judicial appointments, potentially undermining the judiciary’s independence.
The Chief Justice of Pakistan (CJP) will now be appointed from a panel of the three senior-most judges of the Supreme Court by a parliamentary committee, with the government commanding a majority in this body. Furthermore, the JCP will now include four members of parliament and will be empowered to evolve criteria for evaluation and fitness for appointment of judges to the superior courts.
Most importantly, the Amendment envisages the establishment of constitutional benches of the Supreme Court to hear all constitutional matters, with the JCP being empowered to appoint judges to these benches.
Given the prominent role the government has given itself in the process of appointing the CJP, evaluating the performance of superior court judges, and composing constitutional benches, questions about its commitment to judicial independence and separation of powers are inevitable.
It is hoped that while exercising these immense powers, the government realises that one day it will be in the opposition, and that ensuring judicial independence is crucial for upholding democratic principles, regardless of which party is in power.
While the powers it has granted itself display our historical tendency of swinging between extremes, the least the government can now do is to ensure their implementation follows a more balanced approach, and that it doesn’t hide behind the refrain of parliamentary supremacy in trying to shape the judiciary in its desired mould.
Copyright Business Recorder, 2024
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