Experts say 26th constitutional amendment ‘threatens’ judiciary’s independence as government refutes claim

ISLAMABAD: Experts on Monday described a 26th amendment to the constitution as an attempt to curtail the judiciary and make it subservient to politicians as the government moved forward with its implementation, saying the new law will ensure parliamentary oversight in judicial affairs.
Pakistan President Asif Ali Zardari signed into law the contentious amendment, passed by the country’s parliament, that capped the tenure of the country’s top judge at three years and made key changes relating to the appointment of judges in Pakistan among other things.
The ruling coalition had the amendment passed by both houses of parliament on Sunday night amid opposition from former prime minister Imran Khan’s Pakistan Tehreek-e-Insaf (PTI) party and the legal fraternity, who argued it was an attempt to curtail the independence of the judiciary. The government denied this.
“The 26th Constitutional Amendment is not only against basic fundamental human rights but it has also weakened the judiciary by making it subservient to politicians, who are often litigants themselves,” Ishtiaq Ahmed Khan, former president of the Lahore High Court (LHC) Bar Association and a member of the Pakistan Bar Council (PBC), told Arab News.
He said the amendment would “undermine meritocracy and promote favoritism” by giving the right of judicial appointments to parliament.
“The government will have a majority in the parliamentary committee and will appoint judges who serve their interests rather than justice,” Ishtiaq added.
The 26th Constitutional Amendment, 2024 states that a 12-member parliamentary committee will appoint the chief justice from a panel of the three senior-most judges of the top court. The committee comprising eight members from the National Assembly and four from the Senate will propose the name to the prime minister, who will then forward it to the president for final approval. The top judge will be appointed for a period of three years and will retire upon reaching the age of 65 years.
Another clause of the bill states that the Supreme Court judges will be appointed by a judicial commission, led by the chief justice and comprising three senior judges, one member each from the National Assembly and the Senate, federal law minister, attorney general of Pakistan, and a nominee of the Pakistan Bar Council having not less than 15 years of practice in the Supreme Court. The commission will also monitor judges’ performance and report any concerns to the Supreme Judicial Council.
Political commentator Aasiya Riaz said the amendment had significant political and legal ramifications as it would change the “structure of the judiciary for the foreseeable future.”
“The change in process of appointment of judges in higher judiciary has meant that the annihilation of the system is now complete and if there was ever an opportunity that any judge could act on the basis of right and wrong alone, that has been taken care of,” she said.
Since the appointments are now to be made on political considerations of the ruling parties that have a track record of being “compliant and subservient to the political pressures,” leadership of the judiciary will also now be picked on that basis, according to Riaz.
“The amendment has taken care of any chance of a likely leadership in the judiciary not susceptible to playing ball with the military establishment,” she said.
“It has also, at least for the foreseeable future, taken care of the likely political fortunes of Imran Khan, which were apparently coming his way if the existing process of appointment of senior most judge in the Supreme Court was followed.”
PTI spokesperson Sayed Zulfikar Bukhari said the amendment had clear political implications as the government was attempting to eliminate any threat from the judiciary that could “hinder their political ambitions in the future.”
“As for legally, this has completely clipped the judiciary’s wings and it has also made the chief justice of Pakistan irrelevant to a very large extent,” he told Arab News.
Barrister Aqeel Malik, the government’s legal adviser, denied the claims that the amendment curtailed the powers of the judiciary in any way.
“This in no way curtails the judiciary’s powers, but it does ensure parliamentary oversight and a greater role in the selection and appointment of judges, all within the constitutional framework,” he told Arab News.
Malik said the process of appointing judges to high courts as well as selecting the chief justice from a panel of three senior most judges required greater parliamentary oversight and input.
“This will ensure that not just the seniority principle, but of course other considerations such as legal wisdom, acumen and overall general administrative experience,” he added.
Malik said the formation of the parliamentary committee would be completed on Monday and it would begin working immediately on the appointment of the new chief justice.
“As outlined in the amendment, a special parliamentary committee of 12 members will begin its deliberations today or tomorrow, three days before the current chief justice’s retirement and they have until Oct. 23 to send their recommendations, based on a majority vote among the three senior-most judges for the appointment of the chief justice of Pakistan for a three-year term,” he said.
“This does not mean that Justice Mansoor Ali Shah is not under consideration, with all three candidates receiving due consideration despite the constitutional amendments, he remains a strong candidate for the position of the chief justice of Pakistan.”
Asked about the PTI’s future course of action, Bukhari said it was obvious that the party would have to “bear the brunt of this constitutional amendment results.”
“There is only one course of action and that is the only thing that can save the judiciary and save democracy and the rule of law in Pakistan and that is nationwide protest at a large scale,” he said.
Ahmed Bilal Mehboob, president of the Pakistan Institute of Legislative Development and Transparency (PILDAT) think tank, said the amendment was brought as superior courts had been asserting themselves on “political, economic and purely executive decision-making in the country.”
“A reaction had been building within politicians and parliament to this situation and the passed amendment is mainly a way to restrict the courts so that they are unable to pass judgments which sometime even defy constitution,” he told Arab News.
“After this amendment, chief justice will be selected by a parliamentary committee, a constitutional bench within the Supreme Court will become a kind of court within the court resulting in a chief justice who will be much less powerful than before and parliament will be in a more powerful position,” he said.
Mehboob said the implementation of the amendment would tell whether a balance is attained between the judiciary and parliament, or the pendulum has swung to the other extreme.
“If implemented maturely, it may lead to greater political and economic stability,” he added.