Experts warn judicial independence on the chopping block

ISLAMABAD:

With the ink barely dry on the 26 constitutional amendments, legal circles are sounding the alarm, claiming the amendments place the independence of the judiciary on shaky ground.

Critics argue that the executive's newly granted powers to appoint superior court judges and constitute benches in high-stakes cases have set the cat among the pigeons.

Former Sindh High Court Bar Association president Salahuddin Ahmed warns that allowing ruling parties, in the form of a parliamentary committee, the power to select chief justices would compel senior judges to engage in a "rat race" to demonstrate their loyalty to the sitting government.

He further criticises the amendment that gives a judicial commission, now dominated by governmen and parliamentary representatives, the power to select benches for constitutional cases in the Supreme Court.

"If a citizen challenges the actions of the government or a law passed by parliament as unconstitutional, they will now have to plead their case before judges handpicked by that same government or parliament," Ahmed remarked.

'Assault on judicial independence'

Advocate Abdul Moiz Jaferii shares similar concerns, calling the changes an assault on judicial independence. "The government couldn't establish a separate court, so they created one within the existing system."

He warned that a presiding judge will now be chosen by a parliamentary committee to handle critical issues, and the chief justice will not be able to become chief until picked by a parliamentary committee.

He went further, accusing the government of capturing the judiciary. "This is the capture of our superior courts by a group of politicians who have cobbled together an illegitimate government, now fearful of facing legal challenges. They have chosen to abuse the Constitution rather than respect the will of the people," he said.

"February 8th showed that the people are not as stupid as the powerful would like you to think. Mock the social contract enough, and you may find they are not as fearful as you think," he said.

 

'Biggest reversal of judicial independence'

 

Barrister Asad Rahim Khan called the amendments the "biggest reversal for judicial independence in three decades, adding that the post-Musharraf consensus is officially over.

"Appointments of judges have been handed back to the executive, which—as history has shown—should have no business in such selections."

Khan further warned that the new process, where the Chief Justice of Pakistan is chosen from a list of three candidates, would create a "game of thrones" that would wreck a system that was until now immune to such intrigue.

"Judges that were confirmed as future chief justices up until yesterday will likely retire before ever making it, in favour of a court that will naturally prefer pliant or partisan candidates. Taken together, the 26th amendment has dealt a body blow to Pakistan's democracy and its constitutional order," he said.

However, Hafiz Ehsaan Ahmad Khokhar took a different stance, asserting that the amendments do not violate the judiciary's constitutionally guaranteed independence. He argued that a fair system for appointing chief justices and elevating judges to the Supreme Court and high courts had been put in place.

This, he argued, would ultimately reduce criticism of the judiciary in relation to bench composition, appointment practices, and particularly at the CJP's office.

Although he acknowledged that the constitutional bench has been approved in these amendments, he said that the SC and high courts would address constitutional and political matters that would not replace the idea and significance of the concept of the establishment of constitutional court judgment.

Khokhar argued that this was the only way forward because the division of constitutional jurisdiction proceeds from the Supreme Court to the high courts, which would ultimately minimise the backlog of cases and expedite the administration of justice for the general public.

He finally stated that to improve the lives of citizens, it is now necessary to start legislative reforms through new laws in the criminal, civil, and governance sectors with a time-bounded way forward.

Despite these reassurances, some lawyers remain sceptical. They argue that the amendments will have little effect unless lawmakers and executive representatives act fairly, particularly in appointing the CJP.

Concerns also persist over perceived undue influence, with many claiming that a "de facto" group holds sway over Parliament and is curtailing judicial independence for ulterior motives.

There is a growing perception that while political parties have long been victims of judicial overreach, they are now targeting independent judges. If Justice Syed Mansoor Ali Shah is appointed CJP, some believe the criticism of these amendments may subside.

The fate of these amendments now lies with the Supreme Court. In light of the Rawalpindi District Bar Association case, the apex court has the power to strike down constitutional amendments if they are found to violate judicial independence. Much will depend on who is appointed as the next CJP and the presiding judge of the constitutional bench, which could determine the court's response.

Former additional attorney general Qasim Wadood criticized the 26th Amendment, arguing that the judiciary, unlike subordinate institutions like the military or regulatory bodies, must remain an independent body.

 

"Equating the judiciary with other institutions undermines the Constitution's foundational principle of separation of powers," Wadood stated.

"In my view, the 26th Amendment undermines the foundations of Pakistan's Constitution."

 

Judicial coup

Meanwhile, Nida Usman Chaudhry voiced concerns over the impact of the 26th constitutional amendment, calling it a "constitutional coup" that places Justice Mansoor Ali Shah in a precarious position.

She questioned whether, if the special committee selects him as the CJP, he should accept the position.

"Would he, or more importantly, should he accept, given that his acceptance will legitimise these amendments and entrench the new process for judicial appointments, which is highly susceptible to political influence?"

Chaudhry emphasised that even if he is appointed, "these amendments are wrong in principle, and they cannot be supported."

Chaudhry further criticised the final draft of the amendment, stating, "The final draft is as questionable in principle as the original draft that was leaked because, in spirit, it does not stop being an invasion on the judicial appointments process by politicians."

She pointed out that the 12-member committee, which has no representation from anyone outside Parliament, could make apex court judges more politically biased, with a tendency to favour ruling parties.

 

"This cannot be healthy for any government or even for the judiciary itself, as people will view their handpicked CJP as a biased judge."

She stressed that true reforms should strengthen democratic principles, the rule of law, and fundamental rights, not create further chaos and perceptions of bias.

Chaudhry also raised concerns about vague terminology within the amendments. "We are also concerned with the vague terminology such as 'inefficiency' that has not been defined but has been added to remove judges with relative ease. This can be another way to exert pressure on judges that don't toe the line. It is like they want judges to follow the party line as well!"

Regarding the representation of women in the justice sector, Chaudhry highlighted the disproportionate impact of the amendment to Article 177(2)(b), which makes it a requirement to be an ASC for eligibility to be appointed as a judge of the Supreme Court.

This, she noted, would negatively affect women's representation in law. However, she welcomed the reduction in the age for appointment as a high court judge to 40 years.

Chaudhry also expressed disappointment with the amendments concerning the Judicial Commission of Pakistan (JCP).

"Perhaps the biggest challenge regarding representation for women and minorities is within the JCP, where they have created only one seat for either a woman or a non-Muslim qualified as a technocrat in the Senate. This appointment is made by the Speaker of the National Assembly, making it another political appointment instead of one based on qualifications from law."

 

She argued that this makes the representation of women and minorities "interchangeable and mutually exclusive," and turns what should be a non-political appointment into another politically influenced decision.

Chaudhry also addressed the misconception surrounding the relationship between Parliament and the Constitution. She clarified that it is the Constitution, not Parliament, that has created and defined the roles of institutions based on the principle of separation of powers.

"The Parliament cannot usurp another constitutional institution's role, make it subservient to itself, and call it parliamentary supremacy—a concept which is alien to our dispensation and does not apply in its purest form even where they tend to import it from."

She added that Parliament's law-making power is not absolute and is always subject to judicial review. "This amendment breaches those parameters and claims for Parliament exactly what it accuses the judiciary of—encroachment in the other's sphere."

"When we speak of judicial independence, we do not mean to advocate for an unrestrained judiciary," Chaudhry explained. "What we mean is a judiciary that is free from political influence, and that is the one thing that this amendment overdoses on. So no, I do not see it as the solution it is being proclaimed to be."