26th Constitutional Amendment: A Judicial Poison Pill

Unfortunately, the government has whipped a running horse. Instead of legislating for economic betterment–the main drowning ship–the government decided to mold the judicial appointment structure according to its needs. The all-new constitutional amendment has opened a pandora box that will not only complicate the legal framework but will also lead to intense politico-legal chaos. While the backbone of this amendment was reforms in the judicial appointments structure, much executive poison was injected by amending other clauses. The official gazette notification of the amendment very keenly begins with a dual-flavored lollipop—changes in article 9 and article 38. After 78 years of constitutional struggle, the government finally came up with a solution to combat the backbencher status of the country in the Environmental Performance Index (EPI). The deliberate achievement of the insertion of Clause 9A, the fundamental rights of citizens will include the right to a clean, healthy, and sustainable environment. The second flavor seems to please the right-wingers in return for their votes to complete the required count. A slight change–which initially seems an excellent step but has far-righted calculated purposes– was made to Article 38(f) by adding a deadline to eliminate Usury (Riba) from the country before 2028. The addition of this clause can be mapped as a safety valve for these rightists to take a political position and criticize the government after 2028 if needed.  

After a long trend of judicial activism brought in by Justice Iftikhar Chaudhary, the government through parliament, has retaliated due to its outstanding grudge against the judiciary. History has seen the judiciary neutralize the executive cum dictator acidities in multiple instances. As one of the three pillars of the state, the judiciary has been harnessing the extra-constitutional activities of the other two pillars. Having absorbed the lessons of yesteryears, the government has moved its chess piece in a manner that could place the neck of the judiciary under the boots of the executive. The main killer amendments are done to articles 175(A), 177,184,191,199,202, and 209 of the constitution. According to the new appointment structure of the superior judiciary, the Judicial commission will have an executive-oriented majority representation rather than the judges. This commission will not only nominate the judiciary of the superior courts but also periodically review the performance and conduct of high court judges. Moreover, for the appointment of the chief justice of Pakistan, a new 12-member special parliamentary committee should be established that has no clear split between the government and the opposition representation. The parties will get a proportional representation in the committee according to their strengths in both houses of the parliament. This committee will handpick the chief justice from the top 3 Senior judges of the Supreme Court. 

Consequently, the recent appointment of Chief Justice Yahya Afridi has been done by bypassing the 2 senior judges to him, repeating the pre-1996 manner of executive nepotism. The 26th amendment has straightaway discarded landmark legal precedents like the Al-Jehad Trust vs. Federation or Malik Asad Ali vs. Federation that played a very crucial role in the enactment of the seniority principle for Chief Justice appointments of the superior courts. Concomitantly, this amendment has undone the positive reforms for judicial independence of the 18th and the 19th amendments, according to which the judges in the judicial commission had the final say in the superior judicial appointments. But, the selection of the judiciary is now at the mercy of the executive, which will ultimately wipe out judicial independence. It will politicize the judiciary. Looking through the telescope of time, the anticipated three senior most judges will start their political lobbying beforehand so that they can be handpicked later. Due to the thirst for power, the judges will begin expanding their socio-political capital, and the executive loving gestures will also be reflected in their judicial proceedings.   

In an attempt to eliminate the judicial barriers to executive actions, this amendment has made the apex court not only a toothless but also a limping tiger. The amendment in Article 184(3) prohibits the Supreme Court from exercising its suo moto powers in its original jurisdiction. In addition, the court will be devoid of addressing issues of public importance and rip off the root causes at large. As per the amended constitution, it is bound to only address the issues mentioned in the applications filed under the section above and will not be able to grant relief beyond the scope of the prayer asked. Greater emphasis will now be placed on the importance of pleadings because the apex court can no longer save the day through its magical powers. This would impact the governance, and executive decisions will now prevail after this removal of judicial barriers!   

Along with that, the Supreme Court will now be able to transfer any case to other high courts or to itself in the cover of expediency. Handpicked judges can now handpick the desired cases, rule on them, and mold the outcomes of cases as desired by their masters. Equally important is the discourse on the formation of the constitutional benches in High courts and the apex court through the insertion of articles 191(A) and 202(A). The constitutional benches are formed by the same executive-controlled judicial commission. All the teething powers, such as the original, advisory, and appellate jurisdiction’s constitutional domain, which were previously vested in the Supreme Court’s authority, are now transferred to the parallel constitutional benches. What is left for the non-constitutional benches are matters that do not involve the constitutionality of any law or a substantial question of law regarding the interpretation of the constitution. It is not beyond even the comprehension of a man lying on a footpath that all the judicial proceedings involve a constitutional aspect somehow. Such division of the apex court will not only disturb the case hearing mechanism but also increase the pendency of the cases. There would be a back-and-forth tussle between the regular and the constitutional benches on the question of whether the cases involve any constitutional aspect or not, leading to a case placement deadlock. Moreover, the landmark legal precedents decided by the apex court will not be binding on the supplanted constitutional benches, and all the cases of the constitutional benches may have a fresh constitutional interpretation from a century back.  

The executive and the legislature are already very complexly intertwined in Pakistan because the ruling parties mostly have majority confidence in the parliament. As far as Judicial independence is concerned, it is now merely a whisper drowned by the thunder. International bodies such as the International Commission of Jurists (ICJ) and the United Nations Human Rights (UNHR) have also negatively responded to this executive control over the judiciary, calling it an erosion of judicial independence. The 26th constitutional amendment has sparked a rage in the nation, especially in the legal fraternity. Consequently, multiple petitions have challenged the amendment on various procedural and substantive grounds. Unless the Superior Courts strike down these black laws, usurping the fundamental rights and crushing the separation of powers for the common good, the nation will face the aftershocks of the legally protected exploitation of the judicial apparatus by the executive.