A constitution is a set of codified values and socio-political arrangements upon which the society has consensus; it is a manifestation of a society's soul. In the context of Pakistan, our Constitution enumerates a series of fundamental rights contained in Articles 8 to 28, offering a layer of protection to its citizens against state excesses. These abstract fundamental rights would, but for an independent judiciary, remain an unrealisable dream, incapable of being enforced by the citizens. The Constitutional (Twenty-Sixth Amendment) Bill, 2024 (“Amendment Bill, 2024”) seeks to emasculate the constitutional value of a right to be heard by an independent judiciary with impunity.
One of the most radical features, amongst others, in the Amendment Bill 2024, is the creation of a Federal Constitutional Court (“FCC”), which would act as the highest court in the country. The FCC would have the sole prerogative to decide all issues of constitutional importance and a decision rendered by the FCC would be binding on all courts, including the Supreme Court of Pakistan, whose main function would now involve the adjudication and resolution of legal issues/disputes affecting the lives of ordinary litigants. The flip side of this argument may be—which, incidentally, is what has propelled the ruling coalition into introducing the said amendments—that our history is replete with examples of very intrusive judicial intervention in the domain of the executive as well as that of the legislature, disturbing one of the most pivotal constitutional principles of trichotomy of powers.
Further, setting up an FCC has been one of the most prominent features of the Charter of Democracy (CoD), which was signed in 2006 between all major political parties of the time including the Pakistan Muslim League-Nawaz (PML-N), the Pakistan Peoples Party (PPP) and the Jamiat Ulema Islam-Fazl (JUI-F).
The advice tendered by the prime minister is legally binding on the President hence, the nominee can safely be said to have been appointed at the pleasure of the government. The entire process of appointing judges to the proposed FCC is marred with executive control and tainted with a palpable absence of any semblance of independence from the executive
Moreover, the process of appointing judges to the proposed FCC is beset with executive hegemony, thus evoking doubts over the independence and impartiality of such an FCC. In terms of Article 175-A, sub-clause (2C) of the amendment bill, 2024, the first chief justice of the FCC shall be appointed by the President, on the advice of the prime minister. Accordingly, the first cohort of judges of the FCC shall be appointed by the President in consultation with the chief justice of the FCC. For subsequent appointments of the chief justice of the FCC, a parliamentary committee would nominate any one of the FCC's three most senior judges, meaning that any of the first judges appointed by the President will potentially be made a chief justice of the FCC. Even the composition of the parliamentary committee (even if it is perfectly bipartisan) does not guarantee a mandatory presence for the opposition parties, leaving it open for the government to bend the parliamentary committee to its terms.
Similarly, all appointments of the judges to the FCC will be made by a judicial commission which appears judicial only in name, as the members of the judicial commission are composed of the following: Chief Justice of the FCC, five most senior judges of the FCC, Minister for Law and Justice, Attorney-General for Pakistan, Senior advocate nominated by the Pakistan Bar Council, two members of the Senate and two members of the National Assembly. The commission would then propose one candidate for each judicial vacancy to the prime minister, who will advise the President on the appointment of a candidate. The advice tendered by the prime minister is legally binding on the President hence, the nominee can safely be said to have been appointed at the pleasure of the government.
The entire process of appointing judges to the proposed FCC is marred with executive control and tainted with a palpable absence of any semblance of independence from the executive. It is profoundly astonishing that while the chief justice and the two most senior judges of the Supreme Court of Pakistan will be present in the judicial committee for appointing judges to the high courts and the Federal Shariat Court, they will have no role to play in the nomination of judges to the FCC. This appears to be an unabashed attempt to tighten the rein of an independent judiciary with impunity.
A federal constitutional court packed with the nominees of the executive and the Parliament can hardly be said to be independent of the government, and its establishment in the present form will have grave consequences for the people. If this amendment is promulgated, a citizen challenging the constitutionality of a law, which hypothetically legalises indefinite detention by law enforcement agencies till such time that agency deems fit, will eventually, in appeal, only be adjudicated by the FCC.
Therefore, nationally, a sentiment ascribed to one faction of the legal fraternity mostly comprising of lawyers with clear loyalties to the PTI, has gained currency, namely that under the garb of a constitutional amendment, values and ideals that constitute the soul of a constitution cannot be transformed; any change to such values would amount to re-making and re-framing the Constitution. The Amendment Bill 2024, is a grotesque assault on the sacrosanct value of independence of judiciary and ought to be sternly denounced for violating the salient features of the Constitution.