In common parlance, an ‘amendment’ suggests a modification, alteration, addition, or even removal. So, would fundamental changes that completely undo the spirit of a document be considered an amendment? That is the very question we face right now, is the Constitution (Twenty-Sixth Amendment) Bill, 2024 a constitutional amendment or an overhaul?
The core issue with the Amendment Bill goes beyond the obvious. We have already heard concerns regarding the suspect timings of the bill’s introduction, the controversy surrounding retirement age extensions for supreme court judges, the current charged political context, questions regarding the competency of the current legislature to even propose such an amendment, including an apparent failure to even adequately table the Amendment Bill, and finally the proposed creation of the Federal Constitutional Court (“FCC”) itself. The primary concern at hand is that the Constitutional Amendment Bill is an outright attack on the independence of the judiciary and the notion of separation of powers.
The Supreme Court in a majority opinion in 2015, in the District Bar Association, Rawalpindi case, has held that the Parliament, albeit at liberty to legislate as it sees fit, could not pass constitutional amendments that ran foul of certain salient features of the Constitution. Essentially, these salient features are to act as implied restrictions on the Parliament’s ability to alter the Constitution. The independence of the judiciary and the separation of powers have been deemed such salient features. Without delving into the debate of whether the salient features theory has any place in a democracy or whether it serves to preserve the democratic system by acting as a safety valve; it is clear that the proposed amendments run contrary to the salient features of independence of judiciary and separation of powers.
The creation of a Federal Constitutional Court (FCC), the method of appointment of judges to the FFC and Supreme Court, and the divestment of Supreme Court powers threaten the core principles of our judicial branch.
The establishment of the FCC drastically alters the judicial hierarchy of courts; stripping the Supreme Court of its original jurisdiction to deliberate upon and enforce fundamental rights and making it subordinate to the FCC in matters involving interpretation of the constitution.
The proposed amendments are unrestrained by the salient feature of judicial independence as enshrined in the Constitution of Pakistan and how the proposed amendments lend themselves to the erosion of the little judicial independence we have left
The main amendments regarding the FCC in the Constitutional Amendment Bill are as follows:
- The Federal Constitutional Court, not the Supreme Court, shall exercise original jurisdiction under Art. 184 to hear disputes between the provincial government(s) and federation.
- Suo Motu powers under Art. 184(3) shall lie with the Federal Constitutional Court and not the Supreme Court.
- Decisions of the Federal Constitutional Court shall be binding on the Supreme Court.
- The FCC shall have exclusive jurisdiction to hear appeals from High Court decisions rendered under their writ jurisdiction and questions of law demanding an interpretation of the constitution shall be referred by High Courts exclusively to the FCC.
- The composition of the Supreme Judicial Council shall now consist of (i) the Chief Justice of the FCC (ii) the Chief Justice of the SC (iii) the next senior most judge of the FCC (iv) two most senior Chief Justices of the High Court.
- Appointment of Chief Justice of the FCC shall be made by a National Assembly Committee, from a pool of the three most senior judges of the FCC. In contrast, currently, the President of Pakistan is bound to appoint the senior judge of the Supreme Court as the Chief Justice of Pakistan.
- The Judicial Commission, which determines appointments of Judges to the superior courts, shall now include two members of the Senate and two members of the National Assembly.
To sum up the above in simple terms – the Supreme Court of Pakistan is now to only act as the final appellate court. It is no longer empowered to involve itself in any form of constitutional interpretation. The Federal Constitutional Court, on the other hand, shall take on the ‘esteem’ and constitutional powers of the Supreme Court.
It is worth pointing out that the establishment of a separate apex constitutional court is not unheard of. Many civil law jurisdictions such as France, Italy, and Germany have independent apex constitutional and appellate courts. However, Pakistan’s legal tradition is one of common law and not civil law. More importantly, unlike the above-mentioned countries Pakistan has an unfortunate and continuing history of executive interference in the judiciary and judicial proceedings.
Furthermore, in how the FCC is proposed to be established, the constitutional package effectively does away with the idea of separation of powers and an independent judiciary. Instead, it envisions a judicial branch subservient to the executive.
It envisions a future where judicial appointments to the apex constitutional court (FCC) - where core constitutional questions are decided - will be made by a judicial commission heavily influenced by the ruling political party i.e. in the form of two senators, two parliamentarians, a law minister and the attorney general. It envisions a future where judges may be transferred at the whims of the President and substituted with those more inclined toward the ruling echelons and one where matters of constitutional importance may be transferred to the FCC by the FCC as it sees fit.
It is not difficult to see how the proposed amendments are unrestrained by the salient feature of judicial independence as enshrined in the Constitution of Pakistan and how the proposed amendments lend themselves to the erosion of the little judicial independence we have left.
The constitutional package should not merely be a grave concern for any one political party. The amendments, while weakening the independence of an already weak judiciary and its ability to carry out checks and balances on the executive, strengthen the ruling party’s and executive’s chokehold on the judicial system. We should all be wary of the proposed constitutional overhaul.