26th constitutional amendment: experimentation continues

With applause, taunts, sardonic remarks, accusations of arm-twisting, horse trading, and even allegations of kidnapping, the 26th Amendment has finally been passed, though without consensus.

Pakistan's constitutional history is marked by a pattern of manipulations, including stifling dissenting voices and employing both fair and foul means to achieve political ends. This history reveals not only phases of judicial independence, democratic development and parliamentary assertion but also instances of capitulation to the establishment and dictatorship. Since independence, Pakistan's constitutional journey has been arduous and filled with challenges.

"Pakistan has become a laboratory of constitutional experiments," as the first line of GW Chaudhry's book, Constitutional Development in Pakistan, once aptly captured. This phrase from our 1978 syllabus still holds true. Since its inception, Pakistan's constitutions, laws and policies have often been crafted to serve individuals or vested interests, with few exceptions. The nation has witnessed experiments with parity, presidential systems, basic democracies and legal frameworks imposed under martial law. Finally, after the loss of East Pakistan, an elected government emerged.

With a clear vision, Shaheed Zulfikar Ali Bhutto garnered the support of all parliamentary parties to draft a consensus-based Constitution for Pakistan, making it a sacred document. Its sanctity was profound; even military dictators, despite suspending or abrogating it, ultimately restored the Constitution. This spirit of unity was echoed when the 18th Amendment was passed with consensus.

Throughout these amendments, the Constitution's fundamental structure remained intact, with sovereignty belonging to Allah, federal and parliamentary democracy, judicial independence and a clear separation of powers as its cornerstones. The preamble explicitly states that "the independence of the judiciary shall be fully secured."

The independence of the judiciary was further reinforced in the landmark Al-Jihad Trust case. The Supreme Court, in its judgment, recognised the significance of an independent judiciary in upholding the rule of law and protecting fundamental rights. It emphasised a transparent, merit-based process for judicial appointments and established the practice of appointing the senior most judge as Chief Justice of the High Court. Article 175 of the Constitution further mandated the separation of the judiciary from the executive.

The Eighteenth Amendment Act of 2010 introduced Article 175-A, which established a Judicial Commission and a Parliamentary Committee for appointing judges to the High Courts and the Supreme Court of Pakistan. Following the Court's interim order, the 19th Amendment was passed, increasing the number of Supreme Court judges to align the appointment process with the concept of judicial independence and separation of powers, thereby enhancing Article 175-A's functionality. Another significant judgment, Munir Hussain Bhatti vs Federation, clarified that the Judicial Commission's recommendations were final and that the Parliamentary Committee lacked veto powers over them.

However, the 26th Amendment has effectively undone these advances, overriding both Article 175 and Article 175-A. The amendment's primary aim appears to weaken Article 175-A by replacing the principle of seniority with a new provision. Now, the Chief Justice will be "appointed on the recommendation of the Special Parliamentary Committee from among the three most senior Supreme Court judges".

The previous process, whereby the Judicial Commission would forward nominations to an eight-member parliamentary committee for each vacancy in the Supreme Court, High Courts and the Federal Shariat Court, has been altered. Under the new amendment, the Judicial Commission's nominations will be sent directly to the Prime Minister, who will then forward them to the President for appointment.

The new Special Parliamentary Committee comprises 12 members: eight from the National Assembly and four from the Senate, with a majority likely held by the government. Additionally, Article 184 has been amended, imposing restrictions on the Supreme Court's suo moto powers, limiting its ability to act on its own accord in matters requiring immediate attention.

The amendment also modifies Article 186-A, allowing the Supreme Court to transfer cases from High Courts to itself. Furthermore, Article 1-A to Article 199 has been amended to curb High Courts' suo motu powers, thus limiting their capacity to deliver complete justice.

Another notable feature of the amendment is the establishment of Constitutional Benches in the Supreme Court, which will handle constitutional and advisory matters. Similarly, under Article 202-A, Constitutional Benches will be created in the High Courts.

Both the 1973 Constitution and the 18th Amendment were enacted with broad political consensus and without undue pressure or manipulation. In contrast, the 26th Amendment was passed using various questionable tactics to secure the necessary votes, undermining the sovereignty of parliament and raising questions about its legitimacy.

Moreover, the amendment has diluted the power of Article 184(3), which allowed the Supreme Court to act on its own or upon a petition from individuals in cases involving fundamental rights violations.

With both the executive and legislative branches now empowered to appoint judges, the foundational principle of the Constitution - the trichotomy of power - has been significantly compromised.

Makhdoom Ali Khan, a leading jurist, aptly remarked, "History teaches us that there is always a drift towards totalitarianism. It is easy to drift. It is difficult to trust. This is a time to heed history, to make difficult decisions, to prioritise politics and the rule of law over the temptation to dominate and control. Domination may bring order, and order is necessary for governance, but it is not sufficient. Order without trust and inclusive, neutral institutions is tyranny. It leads to repression, not the rule of law."

The 26th Amendment does not carry the trust of a significant segment of the population. In the long run, it may present obstacles to the enforcement of fundamental rights and the upholding of democratic values.

In conclusion, while constitutional amendments are a natural part of any democracy's evolution, the process by which they are enacted and the balance of power they maintain are critical. The 26th Amendment, by altering the judicial appointment process and curbing the judiciary's independence, threatens to undermine the very foundation of Pakistan's constitutional framework. The trust and inclusivity essential for a truly democratic society are at risk, and this may have lasting implications for the rule of law and the protection of individual rights.