Constitutional amendments are not routine legislative business; they often bring changes to the fundamental apparatus of statecraft. This is why there are strict criteria for amending the Constitution. An amendment requires a two-thirds majority in both the National Assembly and the Senate of Pakistan. Before proposing an amendment, it is imperative that the amendments be widely published and extensively discussed before being brought to both Houses of the Parliament. This is because the Constitution is given by the people of Pakistan to themselves, as stated in the Preamble to the Constitution “Now, therefore, we, the people of Pakistan; … Do hereby, through our representatives in the National Assembly, adopt, enact and give to ourselves, this Constitution.” In the spirit of the Constitution, all proposed amendments should be known to the people of Pakistan, for whom this country exists and for the welfare of whom every institution and every law of the land should work. Hidden agendas may serve a few at the peril of the whole nation and should be avoided.
The oft-repeated rhetoric that Parliament is supreme is used to support the view that Parliamentarians can make or undo any law. The Judiciary is often blamed for uncalled-for interference in the law-making power of Parliament. Judicial review is seen as an encroachment on the domain of Parliament. On the other hand, judicial review is considered a lifeline against the excesses of the legislature impinging upon the fundamental rights of the people of Pakistan. Elaborating on the subject, the Supreme Court of Canada, in a very recent judgment dated July 19, 2024, cited as Canada (Attorney General) v. Power, 2024 SCC 26, differentiated parliamentary sovereignty from parliamentary supremacy in the following words:
“First, the principle of parliamentary sovereignty must not be confused with parliamentary supremacy. Parliamentary sovereignty does not mean that Parliament is above the Constitution; rather, Parliament remains subject to the constraints and accountability mechanisms of the Constitution, including the Charter. The supremacy of the Constitution about Parliament is well recognised in each application of s. 52 of the Constitution Act, 1982. Limited immunity does not impair Parliament’s power to make and repeal laws within the confines of the Constitution.”
Limited immunity available to Parliamentary proceedings is consistent with the concept of separation of powers. The Supreme Court cannot interfere in Parliamentary proceedings but can lawfully review the outcome. After-the-fact judicial review is available. Filing a petition against these cryptic amendments to pre-empt their introduction in Parliament by a few senior lawyers in the Supreme Court of Pakistan is not only premature but also puts the sovereign Parliament under pressure not to amend the Constitution against vested interests. They should respect Parliament and challenge the law or the Constitutional Amendments once they are passed. If the Supreme Court of Pakistan entertains this premature petition, it would further aggravate the existing tensions between Parliament and the Supreme Court which does not augur well for the country.
By approaching it prematurely, the role of the Supreme Court of Pakistan is bolstered at the peril of the other organs of the State. It is through such untimely and unnecessary petitions that the Judiciary gets itself involved in fixing the price of sugar, samosas, etc. We have imposed a penalty based on actions taken in pursuance of a judgment of the Supreme Court of Pakistan in the Reko Diq case. It was the political government of the time that came to the rescue. Judicial activism and judicial restraint must be balanced. Unnecessary litigation must be discouraged instead of using it to gauge the power of the institution.
Parliament is certainly not above the Constitution, and likewise, the Supreme Court is also bound by it. Justice Hrishikesh Roy, a serving judge of the Indian Supreme Court, has very candidly put it in the following words:
“Even the Supreme Court is not supreme, the High Court is not high, it is always the Constitution that is supreme. We are all below the Constitution, and our task is to interpret it as we understand it. The real supremacy is of the Constitution.”
Each organ of the State must function properly to keep Pakistan healthy and progressing. In the judgment 2024 SCC 26 (supra), the Supreme Court of Canada jealously guarded the charter rights available to the citizens of Canada. The charter rights are essentially akin to the fundamental rights in Pakistan. The Supreme Court of Canada held the legislature liable for Charter damages when it seriously misused its legislative power. If legislation is enacted wrongly, for ulterior motives, or with knowledge of its unconstitutionality, it is culpable, and damages can be awarded against the crown. Nobody there considers it undue judicial interference in the legislative process. In Pakistan, fundamental rights are violated day and night, and the legislature at times makes laws that are egregiously against the fundamental rights given in the Constitution. We do not know of any case where the state has been held liable for damages for legislating such unconstitutional laws.
The proposed amendments received through the bush telegraph include increasing the number of judges of the Supreme Court, raising their retirement age, and establishing a separate Constitutional Court. Government spokespersons, without delineating any concrete measures. They are of the view that the number of cases in the courts has increased enormously and that the general populace suffers due to the choking of justice delivery lines. The reasons given are not baseless. Lately, the number of cases has increased. But the suggested remedy is not the best in the circumstances. Parliament should first debate why the number of cases is on the rise. Whether it is due to the malfunctioning of the Courts the malfunctioning of the government itself, or both. It appears that both the government and the judiciary are responsible for this enormity. The maladies in the system need to be diagnosed, and then deeply thought-out, thoroughly debated Constitutional and statutory remedies in the form of amendments should be prescribed and administered. It cannot be an overnight agenda; otherwise, matters will worsen due to haphazard, person-specific approaches.
Every Prime Minister is keen to keep this power to himself and his merit is ignored with resultant loss to the public at large. The Parliamentarians should understand that learned, logical, rational, courageous, cogent, and convincing judgments are important.
A few proposals for the consideration of all concerned are hinted at. First of all, the input in the judicial system should be improved. Nepotism and favoritism must be done away with. The selection process should be made transparent. The judges of the Supreme Court and the Islamabad High Court should be selected by a Parliamentary Committee consisting of 10-15 members each from the National Assembly and the Senate of Pakistan. They should be asked about their pleadings, their judgments (in case they are already judges of a High Court), and the reasons for their judgments. Their personal views about the Constitution and democracy should be taken into account. Once they are selected for office, their judgments, which are found to be against Constitutional and democratic principles, should be discussed in Parliament to keep an institutional watch on the judicial process. A similar process for other High Courts should be replicated in the Provincial Assemblies of the respective provinces. Appointments in the Administrative Tribunals (like Appellate Tribunal Inland Revenue) are also very important.
Unfortunately, every prime minister is keen to keep this power to himself and his merit is ignored with resultant loss to the public at large. The Parliamentarians should understand that learned, logical, rational, courageous, cogent, and convincing judgments are important. One such judgment in our system of precedent-based judicial determination will help decide dozens of similar cases in the lower echelons of the judicial system. A poorly-written judgment, on the other hand, generates more litigation work. Therefore, quality counts and the emphasis should be on quality judgments.
Another malaise is embedded in the working of the courts. The autocratic style of hearing in the court by the presiding judges is another cause of delay and injustice in the court proceedings. It has almost become a norm that counsels are not allowed to plead their cases according to their line of argument as judges impatiently interrupt them. The date of hearing can and should be known at least one month in advance. Time should be allotted for uninterrupted arguments for each counsel, and thereafter the judges can ask the missing points or the points they want to clarify for reaching a judgment. They should come to the court after reading the case. Thus, structured hearings will save the time of the court and the litigants alike, and the number of cases disposed of will increase.
In Canada, Justice Dugre’s behaviour in belittling parties and counsel, making inappropriate and offensive comments, and not permitting parties an opportunity to present their case, were all found to be sufficient grounds for pushing allegations of judicial misconduct against him, which ultimately resulted in recommending his removal from office. [Report of the Canadian Judicial Council to the Minister of Justice pursuant to S. 65 of the Judges Act in Relation to the Inquiry into the Conduct of the Hon’ble Gerard Dugre dated December 19, 2022] The Judicial Council in Pakistan can learn a lot from other jurisdictions to improve discipline in the judiciary in Pakistan.
There is no need to raise the retirement age of the judges. After retirement at the current superannuation age, judges should, at their discretion, join judicial academies and law colleges to help polish new generations of lawyers. Let them retire early and re-attire in different colors. They are equally entitled to enjoy their lives with their families and friends like other officeholders after retirement.
When compared with other countries on a population basis, the number of judges in Pakistan is not on the lower side. The problem lies with the rule of law, which is deteriorating with every passing year. For this deterioration, other government departments and political parties are more to blame than our judiciary.
In a nutshell, Pakistan’s constitutional democracy needs to maintain the fundamental separation of powers between the legislative, executive, and judicial branches of state with inbuilt controls over each other. We have been hoodwinked by each branch by its averment that it has its own mechanism of accountability.
Regarding the establishment of a separate constitutional court, the present high courts and the Supreme Court are already constitutional courts. Most of the cases reaching the Supreme Court involve both statutory and constitutional questions of law. The functioning of the existing courts should be facilitated and improved instead of increasing the number of courts. The establishment of benches of the high court at the level of each division should be aimed at providing less expensive speedy justice instead of establishing parallel courts. Parliament should aim at solving political questions through consensus building among the politicians instead of dragging the superior courts of the country into these questions and then blaming them by the party against whose expectations the judgment is announced by the court.
Parliament too needs introspection. It is not truly democratic in its composition. The upper house is elected indirectly, and the use of dirty money in the election of most Senators is widely discussed. Why not bring a constitutional amendment to make this house a representative of the people of Pakistan and not of the political parties? Senators are no longer independent in their views and merely follow the lines of their respective political parties in the National Assembly. Demonetisation of political institutions is also required.
Our Parliament is rightly keen to purge the Constitution of the amendments made by dictators. However, they are silent on the provision of special seats given to political parties to nominate women and minorities “through proportional representation system of political parties’ lists of candidates based on total number of general seats secured by each political party” which is undemocratic and a source of corruption and nepotism. Political parties’ cronies enter Parliament through this lateral system. The amendment should be brought in the Constitution making it mandatory for the political parties to issue party tickets to women as a percentage of the total tickets allotted by them during a general election so that the women play their role in national life as a matter of competence and merit and not as a matter of grace by the political bosses.
In a nutshell, Pakistan’s constitutional democracy needs to maintain the fundamental separation of powers between the legislative, executive, and judicial branches of state with inbuilt controls over each other. We have been hoodwinked by each branch by its averment that it has its own mechanism of accountability. In fact, there is none or merely a moonshine.
The elusive Constitutional amendments need to be brought before Parliament, debated extensively, redrafted in the light of thorough debates and public feedback, refined, and promulgated for better governance and the improvement of the rule of law. Transparency and openness are virtues, especially when they concern amendments affecting the very fabric of society.