26th Constitutional Amendment: Judicial independence at risk
Amidst a storm of controversy the 26th Constitutional Amendment has been approved by both houses of parliament. A special point of concern is that the latest constitutional amendments have been adopted hastily and without broad consultation and debate to highlight their public importance. This is the standard practice all over the world but it was not followed in this case.
The Constitutional Package has introduced a set of amendments, including the tenure and appointment of the Chief Justice of Pakistan (CJP) and the evaluation of judges’ performances The 26th Constitutional Amendment makes major institutional changes in the structure and functioning of Pakistan’s judicial system, particularly with respect to the Supreme Court and High Courts.
Some of the major changes made to the Constitution include taking away the high courts’ suo motu powers, formation of constitutional benches, and performance evaluations of high court judges. The amendment also empowers the SC to transfer any case to itself, and includes a federal minister and a senior counsel in the process of appointing the Islamabad High Court top judge. The Chief Justice of Pakistan (CJP) will now be appointed from a panel of three senior-most judges of the Supreme Court by a parliamentary committee, with the government having a majority in this body. Furthermore, the JCP will now include four members of parliament and be empowered to evolve criteria for evaluation and fitness for appointment of judges to the superior courts.
Another important change is that the amendment envisages the establishment of constitutional benches of the Supreme Court to hear all constitutional matters, with the JCP being empowered to appoint judges to these benches. Because of the prominent role the government has given itself in the process of appointing the CJP, evaluating the performance of superior court judges, and composing constitutional benches, questions have been raised about its commitment to judicial independence and separation of powers.
According to the International Commission of Jurists (ICJ), the 26th constitutional amendment is a blow to judicial independence, the rule of law, and human rights protection. In the words of the ICJ Secretary General,“These changes bring an extraordinary level of political influence over the process of judicial appointments and the judiciary’s own administration. They erode the judiciary’s capacity to independently and effectively function as a check against excesses by other branches of the State and protect human rights. The core principle of the rule of law and the separation of powers according to which citizens and their freely chosen representatives have the right to participate in the legislative process culminating in the adoption and enactment of laws was flagrantly violated in this case.”
The ICJ has expressed special concern regarding the composition of the Judicial Commission of Pakistan which nominates judges for the Supreme Court and High Courts for appointment. Before the 26th constitutional amendment, the JCP comprised a majority of judges. However, the amendment has changed the composition of the JCP to also include two members of the National Assembly, two members of the Senate and one woman or non-Muslim member, to be nominated by the Speaker of the National Assembly. The Law Minister, the Attorney General of Pakistan, and a representative of the Bar were already members of the JCP and remain so.
According to the ICJ, these changes in the JCP’s composition allow for direct political interference and influence over it, and reduce the JCP’s judicial members to a minority. For the appointment of Supreme Court judges, for example, only five out of 13 JCP’s members are required to be judges (namely, the Chief Justice of Pakistan, the most senior judge of the constitutional benches, and the three most senior Supreme Court judges).
It is relevant to point out here that prior to the 26th constitutional amendment, the most senior judge of the Supreme Court was appointed the Chief Justice of Pakistan (CJP). The Executive or the Parliament had no say in his appointment. The 26th constitutional amendment has amended the Constitution to give a “Special Parliamentary Committee” (SPC) consisting of eight members of the National Assembly and four members of the Senate the power to nominate the CJP from among the three most senior Supreme Court judges. The 26th constitutional amendment outlines no grounds or criteria on the basis of which the SPC is to nominate the CJP, while providing that its meetings shall be held in camera.
It is relevant to point out here that these amendments directly violate Article 14 of the International Covenant on Civil and Political Rights (ICCPR), which guarantees the right to equality before courts and tribunals and to a fair and public hearing by a competent, independent and impartial tribunal established by law. Article 10A of Pakistan’s Constitution also recognizes the right to a fair trial. According to some analysts, it is not yet too late for the government to realise that one day it will be in the opposition and the immense powers it has garnered through the 26th constitutional amendment will be used against it. It cannot be overemphasised that judicial independence is the soul of democracy. Shackling the judiciary is akin to strangulating democracy. This cannot be in the interest of any political party.