26th Amendment, why?

The 26th Amendment undermines judicial power, eroding democracy and fairness in Pakistan's judiciary and governance.

A tailor-made legislation, intended to curb the vibrancy of the judiciary, was introduced as 26th Amendment to the Constitution through a manufactured two-third majority. The bill known as 'constitutional package' is now a law, and what transpired behind its haste is yet to be unearthed. But for many it has come as a blow to the nomenclature of democracy, and the spirit of power sharing between the three organs of the stand has been badly rebuked.

The salient features of the final draft, however, remained shrouded in secrecy till it was tabled by the treasury itself, and it is easy to guess that honourable lawmakers who voted into law were ignorant of its impact and ramifications, as all they knew was to sign on the dotted line in affirmative. Moreover, the push and pull that was witnessed in the form of political victimisation to showcase a majority has left behind a bad taste, and discredited the spirit of litigation in national interest.

A glance reveals that the judiciary has been cut to size through the legislation. It has taken away the Supreme Court's suo motu powers, fixed the tenure of the Chief Justice of Pakistan to three years, and empowered the Prime Minister to appoint the next CJP from among three senior most SC judges. Yet the original manifest behind the proposed law was diluted through threadbare behind-the-curtain discussions, and the JUIF and PTI should be commended for keeping alive the momentum by saving the judiciary from capitulation.

As a mark of compromise the proposed Federal Constitutional Court was replaced by a constitutional bench, and only 22 clauses could sail through out of 56 initiated by the government. The amendment to Article 175A, which deals with the process of appointment of judges, has come as a great setback as from now on parliamentary committees will vet the names, which will surely come as a compromise on the fairness of judiciary.

The point is: what was the exigency for a constitutional bench, well with strings attached? A simple answer is that the government feared judicial reviews in opposition's favour as the veracity of the February 8 mandate is in the dock. Likewise, it was nervous on the count of fairness of the new incoming chief justice, who has spoken through his dictums - and is now apparently out of the race. It has killed both the birds with a single stone. That is why critics believe the spirit of the Constitution stands suspended, and there is a long way to go before it could be resuscitated.