A hollow victory
Rashed Rahman
After much huffing and puffing during the last few days if not weeks, the government has finally managed to get the 26th Amendment to the Constitution passed by both houses of parliament with a two-thirds majority. But perhaps despite this, it may be premature on the part of the government to celebrate its ‘victory’, which has implications that may render it hollow.
First, the Amendment itself. To the relief of some, the adopted Amendment comprises 22 Clauses, a radical comedown from the original 50 in the draft the government kept under wraps in an unprecedented treatment of such an important piece of legislation. The reduction to 22 Clauses was brought about by the reservations of coalition partners, but mostly the ‘holdout’ critical input of Maulana Fazlur Rehman, without whose Jamiat-e-Ulema-i-Islam-Fazl’s (JUI-F’s) votes, the magic two thirds number would not have been possible. In colourful language, the Maulana and his party described the amendments to the Amendment as “defanging the black snake”. For the opposition Pakistan Tehreek-i-Insaaf (PTI), the whole process of ‘consultations’ with it on the issue was heavily laden with cajoling, offers of material gain, and coercion, the last including threats not only to members but also their families. These circumstances persuaded the majority of PTI Members of Parliament (MPs) to stay away from the proceedings. The minority who dared turn up voted against the Amendment.
Now to the content of this extraordinary exercise in constitutional legislation. Although the 26th Amendment includes other matters, its main thrust, and focus of public interest and attention, are the Clauses related to the judiciary. Article 175A has been amended to bring in changes to the Judicial Commission of Pakistan (JCP) with the inclusion of four MPs, two each from the treasury and opposition benches, one each drawn from the National Assembly (NA) and the Senate. It is not clear (at least to this writer) whether the original structure of the JCP, i.e. five Supreme Court (SC) judges (with the Chief Justice of Pakistan – CJP – as its chairman), the Attorney General of Pakistan, the federal law minister, a former Chief Justice and a senior advocate nominated by the Pakistan Bar Council will continue and only be added to by the four parliamentarians. The method of appointment of the CJP, hitherto relying on the senior most judge automatically replacing the incumbent on retirement (a procedure inherited from our colonial past), will now be replaced by the choice of a Special Parliamentary Committee from the three senior most judges of the SC. The Committee will forward one name out of the three to the prime minister, who will forward it to the president. This Committee will be composed of eight MNAs and four Senators, selected in proportion to the strength of the parties in the two Houses. The Committee will be bound to send its recommended name for the next CJP at least 14 days before the incumbent’s retirement. However, in the light of the obtaining circumstances (CJP Qazi Faiz Isa’s retirement on October 25, which explains the government’s hurry to get the Amendment passed), this time the committee will be ‘permitted’ to send its nomination up to three days prior to the incumbent’s retirement. Since today, October 22, 2024, is therefore the deadline, by the time these lines appear, the deed may well have been done, implying the government had already decided who it wants as CJP. The CJP’s term, through changes in Article 179, has been set at three years unless he resigns earlier, attains the retirement age of 65 years, or is removed. Even if the incumbent has not reached the retirement age of 65, he would stand retired at the end of the three-year term. The 26th Amendment also empowers the JCP, now weighted by the induction of MPs, to evolve criteria for the assessment, evaluation and fitness for appointment of candidates for judges. If a High Court judge’s performance is deemed ‘inefficient’, an improvement period will be granted (how long is not clear). If the judge fails to improve, a report will be submitted by the JCP to the Supreme Judicial Council (SJC), the forum with the authority to remove judges. The minimum age for appointment of High Court judges has been lowered from 45 years to 40.
The 26th Amendment inserts a new Article 191A for creating Constitutional Benches of the SC, comprising judges of the SC for such term as nominated and determined by the JCP, with the most senior judge among them the Presiding Judge. Whether such judges would be drawn from the existing SC judges or some other source is not clear. Constitutional Benches would consist of at least five judges nominated by a three-judge committee, as is the case in the SC Practice and Procedure Act, the nominating committee comprising the Presiding Judge and the next two most senior judges. The suo motu jurisdiction of the SC under Article 184 will now by exercised by the Constitutional Benches (as opposed, hitherto, by the CJP). The High Courts may have similar Constitutional Benches if the four provincial Assemblies adopt resolutions for the purpose.
The 26th Amendment boils down to a coup by the executive against the judiciary, no doubt with the help and support of the establishment. Its implications, in terms of the independence of the judiciary, may soon become apparent. Not much good can be hoped for in this regard. However, to be fair and objective, the judiciary is itself too responsible for inviting this attack on itself, given its sorry track record in our history. Briefly, this includes legitimising every military coup and martial law, going so far in the last such instance of empowering General Pervez Musharraf to amend the Constitution! When Musharraf dismissed CJP Iftikhar Mohammad Chaudhry, the Lawyers Movement ensured his restoration. CJP Iftikhar Chaudhry then went so far in asserting his restored authority that he caused the country a fair share of problems, including the Reqo Diq near disaster. Other CJPs, Khosa, Saqib Nisar, etc, exceeded what could by any imagination be considered their remit or the upholding of justice and the Constitution, clearly under the influence of the politicisation of the judiciary. And I am not even so far mentioning CJP Munir, whose doctrine of necessity upended the judicial cart early in Pakistan's existence for perhaps the foreseeable future.
In this tussle between the executive and the judiciary, with the establishment hiding not so successfully behind the skirts of the former, there are no innocents. Their misdemeanours of the past and present have brought us to this sorry pass. The whole story reeks of the sad conclusion that we have no idea how to build or defend institutions, only a rare talent for destroying them.
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