Assault on the Constitution

The Federal Government has, for now, backtracked on a constitutional amendment package, having the potential to fundamentally reshape the judiciary, after failing to secure critical support from a key political party in the parliament. When it comes to proposing a 26th amendment to the Constitution, with significant implications for the rule of law and the judiciary's future, it is expected that there would not only be extensive parliamentary debate but also broader public discourse involving legal experts, civil society and the media.

The frantic efforts to gather numerical support in the parliament while keeping the contents of the proposed amendment largely hidden only reinforced the perception that the government had something to conceal. Upon review of the details that have since emerged, concerns about a lack of transparency appear justified.

The government's stated rationale behind bringing the mentioned amendments in haste is that the higher courts have become too politically biased, necessitating reform. To depoliticise the judiciary, the proposed solution is to ensure that constitutional cases are heard only by judges appointed by the ruling political parties. Another argument is that the judicial system is overburdened, leading to long delays for litigants. Ironically, the proposed solution through the amendments is to add another layer to the judicial hierarchy, allowing litigants to appeal to a constitutional court on constitutional grounds after exhausting civil and criminal law remedies at the Supreme Court.

A closer examination of the bill's key provisions, for instance, amendments to Article 175-A of the Constitution ¬– which governs the appointment of judges to the High Courts, the Supreme Court, and the Federal Shariat Court - would effectively merge the judicial commission and parliamentary committee responsible for appointing judges. The bill stipulates that the President shall appoint the first Chief Justice of the new constitutional court on the Prime Minister's advice. Likewise, the initial judges of this court would be appointed by the President in consultation with the first Chief Justice. For these initial appointments, the merged judicial commission would have no role. It would only become relevant for subsequent appointments after the constitutional court is fully established.

The bill would also immediately transfer the Supreme Court's original jurisdiction - including disputes between governments and petitions involving fundamental rights - to the new court. Additionally, it prohibits both the new and old courts from hearing petitions regarding individuals acting under laws related to national security. More significantly, the bill grants the constitutional court exclusive jurisdiction over appeals against High Court decisions under Article 199, which deals with writ petitions. While political petitions constitute a small fraction of writ petitions, the majority involve routine challenges to lower court rulings or actions by government authorities.

This raises the question: what role will the Supreme Court play? The Supreme Court would hear appeals from High Courts in their statutory appellate or revisional jurisdictions, but any case involving a substantial constitutional question would be transferred to the constitutional court. Moreover, the constitutional court would decide whether a case falls under its jurisdiction or that of the Supreme Court, meaning thereby that, in practice, the bill effectively dismantles the Supreme Court of Pakistan.

These amendments appear to be an attempt to weaken the judiciary and sideline the incoming Chief Justice, who is viewed as a challenge to the executive. The amendments seem less about restoring parliamentary authority and more about consolidating power where it has traditionally resided. Undeniably, the Constitution represents the social contract between the state and its citizens. Its preamble acknowledges that "it is the will of the people of Pakistan to establish an order." Yet, the people - the true custodians of the Constitution - have been completely excluded from the amendment process.