Following a heated debate and strong protest by the opposition parties, the 27th Constitutional Amendment Bill was passed by Parliament last week. The move has proved highly controversial. Critics say that the amendment has changed the basic structure and violated the principle of separation of powers established by the 1973 Constitution which envisioned an independent judiciary. In their view, the amendment has made the judiciary subservient to the executive.
In protest against the new amendment, two senior judges of the Supreme Court of Pakistan, both former chief justices of their respective provincial high courts, have resigned. A judge of the Lahore High Court has also subsequently resigned. A strong point of criticism is that the new amendment was rushed through parliament with extraordinary haste. Constitutional amendments are no ordinary pieces of legislation. They call for deep deliberation and open public debate by jurists and representatives of the people so that all aspects of the proposed amendment, both positive and negative, are discussed and a national consensus is evolved. But this process was not followed in the case of the 27th Amendment.
From the government side it has been argued that Parliament has the right to amend the constitution. But this right is not absolute and subject to some unwritten limitations and conventions. For example, the Parliament cannot alter the basic structure of the constitution, especially the provisions relating to its Islamic character, fundamental rights, the principle of separation of powers and independence of judiciary. No doubt, the Parliament has the right to establish a Federal Constitutional Court but before proceeding ahead, it should have consulted with the superior judiciary and held open debate on the merits and demerits of the issue. A constitutional amendment calls for due diligence and detailed deliberation. But this procedure was not followed. Also, no action was taken to respond to the written concerns raised by some sitting judges.
Diving into the details of the 27th Amendment, it appears that the amendment has introduced drastic changes to the existing judicial system and the military’s chain of command, giving sweeping immunities to government officials. With the establishment of a Federal Constitutional Court (FCC) as the apex court in Pakistan, all matters of a constitutional nature, including those relating to public interest and the enforcement of fundamental rights of the people, will be heard by the FCC, while the Supreme Court will merely function as an appellate court for civil and criminal matters. Of particular concern is the new provision that the chief justice and all judges of the first FCC will be handpicked by the Prime Minister and the President.
What is more, the Supreme Court and all other courts will be bound by the decisions of the FCC. The new amendment allows the Special Parliamentary Committee to select the chief justices of the Supreme Court and the FCC from amongst the judges of the respective courts. But there is no prescribed criterion for a judge being selected to either position. Previously, the senior-most judge of the Supreme Court was automatically selected as the chief justice of Pakistan without any interference from the government.
Well known jurists have also expressed concern over the fact that the Judicial Commission of Pakistan, which selects judges for elevation to the Supreme Court, the FCC and the high courts by voting, cannot function independently as it is dominated by political and executive-branch members. Only five out of 13 members of the JCP will be judicial appointments. Earlier, the judges of the superior courts were selected by the JCP which had a majority of judicial members. The executive-dominated JCP will also have the power to recommend the transfer of judges from one high court to another, and if a judge does not accept the transfer, they will face disciplinary proceedings and may be removed for misconduct. This provision has been interpreted as a standing threat to judges who pass a judgment against the executive.
According to the government spokesmen, these amendments have been made to exercise greater control over the superior judiciary which had become too powerful and was overstepping its constitutional mandate. In this context, it has been cited that in the past some judges committed judicial overreach which jolted the system and created an imbalance. Under the new amendment, this will not be possible anymore.
But there is another side to the picture. A glance at the judicial history of Pakistan shows that whenever courts interfered in political matters, it was because some hands were at work behind the scenes. Examples of this are endorsement of martial laws and removal of prime ministers from office by court orders. In this context, it is pertinent to recall here that recently some judges of the Islamabad High Court known for their uprightness and independent stance wrote a letter to the then-CJP Qazi Faez Isa, complaining against harassment by invisible forces. Justice Athar Minallah also wrote a letter to Chief Justice Afridi, saying that judges were under pressure while giving a verdict in favour of the PTI in the reserved seats case. But no remedial action was taken.
According to media reports, some lawyer bodies and civil society organisations have announced their plans to hold nation-wide rallies to register their protest against the 27th amendment. It remains to be seen how much public pressure they can generate to force the government to withdraw or amend the new amendment.