Salient Features of the Amendment
The most critical aspects of the amendment relate to the changes in the process of the appointment of the chief justice (CJP) of the Supreme Court (SC), the appointment of judges, and the creation of a separate bench to hear constitutional cases. The provisions of the bill include taking away SC’s suo motu powers, capping CJP’s term at three years, and most significantly empowering a special parliamentary committee to name the chief justice from three senior-most ones. The judicial commission will nominate members of the constitutional bench. The Judicial Commission will be reconstituted, to include the CJP, four senior-most judges, the Law Minister, the Attorney General, a representative from the Pakistan Bar Council, and two members each from the ruling and opposition parties in both the National Assembly and the Senate. Recommendations sent to the President or Prime Minister by the Cabinet will not be challengeable in court.
The critics of the amendment have called it an assault on the independence of the judiciary. The shrill voices of protest ignore the fact in most democratic countries, judges are appointed by the legislature and the executive. It is therefore important to understand the historical context of the developments that have led to the introduction of the 26th Amendment.
Background of the clash between the government and some judges
The recent clash between the government and a section of the judiciary was a direct consequence of some judges' highly partisan behaviour and their unconstitutional and political judgments.
The Supreme Court of Pakistan, on July 12, 2024, declared Imran Khan’s Pakistan Tehreek-i-Insaf (PTI) eligible for seats reserved for women and minorities, in a short order, by an 8-5 majority. The court annulled the decision of the Peshawar High Court while also declaring the decision of the election regulator null and void, stating that it violated the Constitution of Pakistan. More than two months later, the court released a detailed 70-page judgment. The judgment declared that the role of the Supreme Court of Pakistan in overseeing electoral integrity is crucial for sustaining public trust in the democratic process, and the Court’s power to do “complete justice” is a critical tool in the constitutional arsenal of this Court.
The ruling’s invocation of "complete justice" drew significant backlash from political parties, civil society, and legal experts. Critics argue that the judgment undermines democratic principles and raises questions about the judiciary's role in electoral matters. The court seemed to have invented the complete justice doctrine by apparently borrowing the concept as well as the term from Article 142 of India’s constitution.
The principal criticism levied against the Supreme Court’s majority ruling, as articulated in the dissenting opinions of Justice Amin Ud Din and Justice Naeem Akhtar, was that the court effectively reinterpreted the Constitution and exceeded its jurisdiction by granting relief that was never solicited. Pakistan Tehreek-e-Insaaf, the principal beneficiary of this ruling, was not a party in the proceedings before the Election Commission, the Peshawar High Court, or even the Supreme Court itself. Furthermore, the Court addressed the entitlements of candidates who were never heard, and neither contested their affiliation with the Sunni Ittehad Council, further complicating the matter.
Earlier in October the Supreme Court of Pakistan overturned its 2022 decision on the interpretation of Article 63-A of the Constitution of Pakistan. Article 63-A deals with the disqualification of parliamentarians for defection, which says that any member of Parliament who votes or abstains from voting against instructions of their Parliamentary party on key matters may face disqualification. In its 2022 decision on a presidential reference, the Court had ruled that such defecting votes would not be counted — a judgment that was widely criticised by the legal community for overstepping the constitution and essentially rewriting the law. The Supreme Court Bar Association (SCBA) petition argued that the framers of the Constitution intended to disregard defecting votes to be a stop-gap arrangement for ensuring stability during the Constitution’s first decade. This stance is supported by views expressed by Rafi Raza in his book, Zulfikar Ali Bhutto and Pakistan 1967-1977. Rafi Raza, one of the authors of the 1973 constitution, had written that the provision for disregarding the vote of a member against the majority of his party was for a limited period of 10 years. It therefore was not part of the so-called fundamental structure of the Constitution.
The Supreme Court Bar Association subsequently filed a review petition, which remained pending for nearly two years. This was a blatant demonstration of partisan conduct on the part of certain judges who tried to prevent the chief justice from performing his duties.
On September 7, 2024, the president approved the Supreme Court (Practice and Procedure) Amendment Ordinance 2024, which amended the law to clip the top judge’s powers of bench formation. In October 2023, the Supreme Court upheld the SC (Practice & Procedure) Act, 2023 which was formulated to regulate the affairs of the top court. Previously, this was solely the prerogative of the CJP.
The law, which was passed by parliament in April 2023, states that a three-member bench, comprising the chief justice of Pakistan (CJP) and the two senior-most judges of the apex court, will decide whether or not to take up a matter suo motu. According to the September 2024 ordinance, the Supreme Court committee responsible for bench formation would constitute the CJP, senior puisne judge, and any other apex court justice nominated by the CJP from time to time instead of the third most senior judge, currently Justice Munib Akhtar. Justice Munib’s judgments and conduct have been widely criticised for being overly partisan and favouring the PTI. Justice Akhtar was instrumental in delaying the hearing of the appeal against the SC’s July 2024 verdict on the allocation of the reserved seats on the pretext of summer holidays.
The judiciary cannot be sovereign and accountable to no one. This is an untenable proposition. Iftikhar Chaudhry achieved that position through blackmail of the parliament with the assistance of the establishment led by Gen Kayani.
On March 21, 2022, Justice Munib Akhtar observed that after joining a political party, a lawmaker's individual vote during no-confidence proceedings was considered a "collective right". He had declared that according to Article 95(ii) of the Constitution, which deals with the procedure to bring in a no-confidence motion against the prime minister, a member's individual vote had "no status". This observation was made after the then-opposition moved a no-confidence motion against Imran Khan on March 8, 2022.
Justice Akhtar was part of the majority apex court bench that in July declared the PTI eligible to receive reserved seats for women and non-Muslims in the national and provincial assemblies, giving it a new lease on life in the legislature by declaring it to be a parliamentary party.
The controversial and tainted legacy of Iftikhar Chaudhry
The judiciary cannot be sovereign and accountable to no one. This is an untenable proposition. Iftikhar Chaudhry achieved that position through blackmail of the parliament with the assistance of the establishment led by General Ashfaq Pervez Kayani.
The approval of the 19th Amendment was a victory for Iftikhar Chaudhry who had managed to arm-twist parliament to get the maximum power that he wanted. Right after the passing of the 19th Amendment, CJP Chaudhry formulated the rules of the Judicial Commission of Pakistan (JCP); the most devastating was Rule 3. By imposing the amendment, he managed to gain a majority of judges in the JCP, making a six-judge majority in the nine-member commission. Rule 3 of the Judicial Commission empowered the chief justice to make nominations which the commission could assess and confirm or reject. It is a matter of record that Iftikhar Chaudry had been supported by then-army chief Kayani.
The Supreme Court judges were on the "same page" when Gen Bajwa launched an assault on democracy. Many critics of the constitutional amendment ignore the historical context. Even if the politicians have not performed well, only the parliament can and should exercise sovereign power under the 1973 constitution. As far as the question of legitimacy is concerned, how many governments had real legitimacy since 1977? Given Pakistan's unique circumstances and the judiciary's extremely shameful conduct over decades, it should stay away from political cases and let the stakeholders sort out disputes through the political process. This is not just a legal matter. It is about political science and about what kind of arrangements are workable at this time when few of the judges have acted more as supporters of a political party.
A judiciary with one of the worst reputations in the world and a shameful past should not be allowed to wield so much power. We don't have an ideal situation but judicialisation of politics cannot contribute towards solving Pakistan's multiple crises. It has, in fact, exacerbated them.
How Supreme Court judges are appointed in the United Kingdom
Many commentators have made references to the constitutional practices in common law jurisdictions. It is therefore pertinent to review the process of appointment of judges to the UK Supreme Court.
The appointment of judges to the UK Supreme Court is a critical process that shapes the judiciary's independence and integrity. Over the years, this process has undergone significant changes, particularly since the establishment of the Supreme Court in 2009.
As of now, judges to the UK Supreme Court are appointed by the monarch on the advice of the Prime Minister, following a recommendation from an independent selection commission. This commission is composed of members from various legal backgrounds, including sitting Supreme Court justices, judges from other courts, and legal academics. The role of this commission is to ensure that candidates possess the necessary legal expertise and experience, thereby maintaining the standards of the judiciary.
The selection process begins with a public advertisement for vacancies, followed by a rigorous vetting process where candidates are assessed based on their legal acumen, judgment, and ability to engage with complex legal issues. After deliberation, the commission submits a shortlist of candidates to the Prime Minister, who makes the final recommendation to the monarch for appointment.
Evolution of the appointment process in the UK
Historically, the appointment of judges in the UK was less formalised, often influenced by political considerations and patronage. Prior to the establishment of the Supreme Court, judges were appointed to the House of Lords, with the process frequently criticised for its lack of transparency and accountability. The Constitutional Reform Act of 2005 marked a significant shift in this paradigm, culminating in the creation of the Supreme Court as a separate entity from the House of Lords. This act established the current selection commission, aimed at enhancing the impartiality and independence of the judiciary.
Critique of the current UK system
While the establishment of an independent selection commission represents progress, several critiques remain pertinent. First, the transparency of the selection process is often questioned. Although the commission publishes details of its proceedings, critics argue that the process lacks sufficient public scrutiny, which could lead to perceptions of favouritism or bias.
Secondly, the dominance of a small elite within the legal profession in the selection process raises concerns about representation. The current system tends to favour candidates from traditional legal backgrounds, often resulting in a lack of diversity in terms of gender, ethnicity, and socio-economic status.
The intertwining of political influence with judicial appointments, despite the independent commission, remains a contentious issue even in the UK.
Conclusion
It is clear that even in the UK, the parliament and the prime minister have played a major role in the appointment of Supreme Court judges, whose retirement age is 75.
Pakistan is a dysfunctional and unstable state. The idealists and partisan elements believe that the 26th Amendment will clip the powers of the Supreme Court judges. In the context of recent history particularly since 2009, many Supreme Court judges and their decisions have contributed to political instability as they were guilty of judicial overreach, indiscriminate use of suo moto powers, making political decisions by issuing short orders (later justified through backward reasoning), acting in concert with the intelligence agencies to remove elected prime ministers, and lately by acting as supporters of a political party by delivering unconstitutional judgments (63A and reserved seats) that sought to re-write the constitution. In addition, certain judges were guilty of misconduct such as passing objectionable remarks to gain cheap popularity, issuing press statements, and publicly casting aspersions on the conduct of other judges. It is amusing that a former minister of Musharraf and a co-conspirator of Iftikhar Chaudhry claims to be a defender of the constitution.
While the government has resorted to some undesirable tactics to secure the required majority, it cannot be denied that the extraordinary powers usurped by the Supreme Court during the Iftikhar Chaudhry period had the complete backing of the establishment. The establishment decided to correct the imbalance as the pendulum had swung too far towards the SC and created a system where it could remove elected prime ministers and behaved as if it was above the constitution and accountable to no one. A judiciary with one of the worst reputations in the world and a shameful past should not be allowed to wield so much power. We don't have an ideal situation but judicialisation of politics cannot contribute towards solving Pakistan's multiple crises. It has, in fact, exacerbated them. The battle for political power is best fought through the political process, no matter how highly flawed it might be.