Judicial independence after 26th Amendment

26th Constitutional Amendment after a hyped political drama now stands part of the constitution. It has been acted upon with the appointments of the Chief Justice of Pakistan (CJP) and Constitutional Benches (an inartistic and vague expression) of the Supreme and High Courts (CB).

These CBs are a constitutional aberration, a crude and cunning attempt to undermine and weaken the superior judiciary and its independence.

Appointments to the Supreme Court and High Courts, under the newly formed Judicial Commission of Pakistan (JCP), are seemingly the next step that will pave the way for packing the Courts with loyalists. This new lot, owing its appointment to 26th Amendment and the Executive-Parliament majority in JCP, would become beneficiary and defender of this new judicial dispensation.

The Bar apparently and visibly stands divided. There is a pro-government President of the Supreme Court Bar. Pro-government advocates control most of the Bar Associations and Councils. There is a little chance that any movement or legal proceedings would succeed in the face of open offers and promises of appointments to different judicial and legal offices and panels and monetary prospects for supporting 26th Amendment.

The only silver lining in this dark moment, after a blatant onslaught on the Judiciary, is that this new judicial dispensation will ultimately prove counter-productive and unworkable. It is bound to create unrest and harmful disadvantages for the legal profession and general public. An unstable and uncertain judicial system undermines foreign direct investment (FDI), creates political instability and undermines the rule of law and fair administration of justice. There is thus potential for resistance and consequently 26th Amendment may be reversed due to adverse public opinion. This approach of the Government towards the judiciary, rule of law, constitution and democracy may ultimately erode and even end the last remains and pretence of constitutionalism in Pakistan.

The motives behind the enactment of 26th Amendment are well known. No sensible person believed in the reasons touted by the Government Alliance. The threat of ‘brute majority’ and the way this Amendment was surreptitiously passed is in the public domain. The convenient reference to the Charter of Democracy, huge pendency and allegation of politicization of the judiciary, were only a smoke screen.

The actual reasons behind this mounted attack on the judiciary and its division were the reserved seats case and Judiciary’s protection of fundamental rights and the Constitution in the face of blatant violations. The ruling alliance got exposed to common man’s intelligence.

Constitutional and political questions always come before the Courts. The objection of political question was overruled in Nawaz Sharif’s case (1993). Now these questions would be decided by CBs, whose selection is controlled by the Executive-Judiciary majority in JCP.

Any sitting Government may be able to influence the result of a case with its appointed and voted CB. The fate of any case is predicable from the formation of the CB. It is like fixing a jury. A Government would be the master of its own cause, roster and rolls.

The power of appointment of Benches that previously vested in the committee of Chief Justice and two other judges now stands transferred to the Executive-Legislature majority in JCP for constitutional matters. It is this unchecked power of the Executive/Legislature that poses the greatest threat to liberties, constitution and democracy. An increase in allowances and privileges at this time is also a suspected move.

There are virtually now two Supreme Courts and two High Courts. The head of the CB is practically superior to Chief Justice(s) because the former, with his like-minded colleagues, hears and decides higher causes of the constitution and decides political cases. Moreover, the CBs are unaccountable to the Chief Justice(s). The head of a CB is the master of the constitutional roster.

Before enacting 26th Amendment no study was undertaken. Empirical data on the working of the Constitution in India shows that CBs have proven inefficient in many ways. The Chief Justice of India and 4 senior most judges sit on this Bench. In a study published in the Economic and Political Weekly (2011) under the title, ‘Interpreting the Constitution: Supreme Court’s Constitutional Benches since Independence’, showed that with the passage of time, the disposal of constitutional cases decreased and pendency increased. From 1950-54, 364 cases came up before CB. 293 were disposed of. From 2005-2009, 18,574 cases came up before CB and only 5,557 were disposed of.

Now, in addition to the present constitutional cases, new constitutional matters, appeals, original jurisdiction, stand transferred to CB. 7 Supreme Court Judges would sit in CB. The increase in number of Supreme Court Judges would bring more inefficiency and burden on the exchequer, which is filled with borrowed money. The whole system was liquidated to get few judgments reversed.

Two fundamental constitutional principles, which seriously undermine the judicial branch are in question here. The power of appointment of judges of superior courts and the control of the roster have direct nexus with the working and independence of the Judiciary.

The election of the head the CB of the Supreme Court showed that 26h Amendment swings back the power of appointment to the Executive-Legislature that was previously manipulated by the judicial branch (after the Judges Case I and 18th& 19th Amendment).

The power of initiation of names, not expressly given to the judicial branch, was arrogated through the Judicial Commission’s Rules that virtually created a monopoly of the judiciary over the power of appointments. Names of advocates were included in the lists prepared by the Chief Justices of the High Court on personal and family relations, chamber associations and liking and disliking of respective Chief Justices and the Chief Justice of Pakistan.

The data of appointments of judges from 2009-2024 shows that considerations other than merit were the determining factors in several appointments. The Executive Branch was virtually relegated to a post office while Parliamentary Committee was made powerless and its decisions were justiciable while the decisions of Judicial Commission of Pakistan were not.

But even then the Judiciary stood by the Constitution to a large extent in hard times. Packing the courts with loyalists, as was done earlier in 1990s and now after the 26th Amendment, would cause extreme harm to the judicial branch.

The idea of JCP taken from the US Constitution and UK’s Constitutional Reforms Act, 2005 was partially implemented without appreciating the underlying constitutional principles. In India, the Judicial Commission of India was created through the 99th Amendment (2014) but it was declared unconstitutional in 2015 in the Advocates on Record Case (2016 5 SCC 1).

Judicial appointments during the British rule were made on merit by the Executive. After Partition, the power of appointment of Chief Justice(s) remained vested in the Executive but other judges were appointed ‘after consultation’ with Chief Justice(s). Until 1994, the consultation was not binding.

After favouritism rampaged, through the first Judges Case (1994), this consultation obtained substantive meanings and CJs’ opinion was given a binding effect. Pakistan followed that case In the Al-Jihad’s case (1996). This check on the power of appointment got further strengthened with the concept of collegiums in India (as consultation with ‘such other judges’) was introduced.

In Pakistan, there has always been a gulf between the Constitution and political facts. The doctrine of necessity used to be employed to bridge it.

Constitution is the fundamental document for a nation. Like a scripture, any improvement made therein must be motivated by public good and to alleviate people’s hardships. 26th Amendment, like many other Amendments made during the last 55 years is a product of political and constitutional engineering that serves no public good.

Copyright Business Recorder, 2024