26th Amendment: Using Parliament to Debase the Constitution

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The 26th Amendment, rushed in, is not about reforming the higher judiciary. It is a blatant attempt to subjugate the judiciary to a government’s political whims. That must be resisted

2024-10-23T16:51:00+05:00 Ejaz Haider

PREAMBLE

On July 24, 2023, Israel’s Knesset passed a controversial bill to strip their highest court of the power to declare government decisions unreasonable. The bill, dubbed the “reasonableness bill”, passed with a 64 to nil vote after all members of the opposition boycotted the vote.

The passage of the bill sparked massive public protests. The controversy also pulled in the military and intelligence bosses after military reservists threatened they would not report for duty unless the legislation was reversed. Protests spread to most major cities.

So, what exactly was the governing coalition led by Israel’s Prime Minister Benjamin Netanyahu trying to do? The answer needs a brief background.

Israel is a common-law country. It does not have a clearly defined constitution. Its “constitution” has evolved through gradual legislation of what are called Basic Laws. They are roughly the equivalent of constitutional articles. The reasonableness standard, if you will, has evolved from the judicial review of administrative (executive) actions and decisions. Like most common law countries, judicial decisions in Israel are important in developing jurisprudence through the interpretation of the laws by the judges.

Unlike many other countries, Israel does not have a bicameral legislature or a formal veto by the President, the latter office being largely ceremonial. To put it differently, if a bill passes through the Knesset, there’s no check on its reasonableness except judicial review. 

This was the central point of the protests, on the pretext of reforming the judiciary, the governing coalition wanted to remove all power of the Israeli judiciary to set aside “extremely unreasonable” government decisions. The critics, including some top jurists, argued that the Netanyahu government wanted to (a) weaken the power of the Supreme Court to review or throw out laws, enabling a simple majority of one in the Knesset to overrule such decisions; (b) wanted a decisive say over who became a judge by increasing the government’s representation on the committee which appointed them and (c) do away with the requirement for cabinet ministers to obey the advice of their legal advisers, which they had to do by law and which process was guided by the attorney general.

Interestingly, and this point is crucial for our present purpose, there was a general sense in Israel that the approach of their judiciary to legislative review had become expansive and it was important to create some balance. But smartly enough, the political and civil society opposition also understood clearly that the Netanyahu government was using the generally-accepted idea of reform as a screen to tilt the balance predominantly in favour of his coalition. 

The Israel Supreme Court (known as the High Court of Justice) struck down the legislation on January 1, 2024. 

This political control by the JCP has also been extended to the jurisdiction of High Courts which will have similar “constitutional benches” in cases involving the writ jurisdiction of such courts.

TO FATHERLAND AND THE 26TH AMENDMENT

There has been much debate in Pakistan — though no real protests — over the “constitutional package” which has now been bulldozed through Parliament as the 26th Amendment to the Constitution. Much of this debate has danced around the problem, looking at legalities and technicalities. While technicalities are important, an undue focus on them deprives us of getting to the core of the problem: the legislation is political, mala fide, and enacted by an illegitimate political dispensation.

Just like Netanyahu, this government is trying to get pliant judges, to shield its leaders from judicial scrutiny and, when necessary, to get the judiciary to rubberstamp its agenda.

The issue is not how much of that it can manage but the objectives of this exercise.

Let’s use some bullet points to make this clear.

  • The package was kept secret and multiple drafts were debated and discussed while midnight political wheeling-dealing was being done.

  • The government’s obsession with pushing through the package bordered on desperation, especially when it realised that it could not sell the original maximalist package.

  • It was forced into some compromises but it stuck to the basic objective — making “institutional changes in the structure and functioning of Pakistan’s judicial system, particularly with respect to the Supreme Court and High Courts.”

  • I wrote in this space on September 16, the objective is to exercise political influence over the process of judicial appointments and the administrative workings of the judiciary.

  • This has been done by changing the seniority rule for the position of the Chief Justice of Pakistan and the composition of the Judicial Commission of Pakistan (JCP).

  • Having failed to get the numbers for constituting a Federal Constitutional Court, the government has taken the circuitous route to getting its objective by granting the JCP the power to nominate “constitutional benches” within the SC and respective High Courts. “These benches shall have exclusive jurisdiction over matters involving interpretation of the Constitution and enforcement of fundamental rights.” This power is in addition to the extended JCP’s power to nominate judges for appointment.

  • What does this mean? The new composition of the JCP makes it a political body that now has the power to make bespoke benches to address specific “constitutional” questions that have a direct bearing on the government and its interests. The power to constitute such benches in combination with the power to appoint judges makes the JCP a supra body of sorts with a wide range of carrots and sticks to influence judicial decisions and to get rid of irritating judges with a greater-than-desired allocation of conscience and probity.

  • This political control by the JCP has also been extended to the jurisdiction of High Courts which will have similar “constitutional benches” in cases involving the writ jurisdiction of such courts.

  • The change in the seniority principle for appointment of CJPs to selection by the government of a judge from a panel means (a) jockeying and lobbying among the judges for making it to the top slot and (b) the use by the government of that leverage to get a judge who, at least in theory, will be more accommodating of the government’s agenda. 

  • This objective is then provided cavalry by allowing the JCP to seek the removal of judges who have been “inefficient in the performance of [their] duties,” without defining what such “inefficiency” might mean. While the ultimate power of removal remains with the judges-only Supreme Judicial Council, this power of complaint will allow the government to malign any such judges as it does not like.

  • This is deliberate and in essence a Damocles’ sword over the head of any judge, especially the CJP, just in case (s)he decides to develop a conscience.  

  • Corollary: the entire exercise is meant to “erode the judiciary’s capacity to independently and effectively function as a check against excesses by other branches of the State and protect human rights” in order for the current coalition to advance an agenda backed by the military.

  • Finally, as the International Commission of Jurists’ statement says, “These amendments directly violate Article 14 of the International Covenant on Civil and Political Rights (ICCPR), which guarantees the right to equality before courts and tribunals and to a fair and public hearing by a competent, independent and impartial tribunal established by law. Article 10A of Pakistan’s Constitution also recognises the right to a fair trial.”

Since the 2007 movement for the independence of the judiciary, the higher judiciary, on a number of counts, has not covered itself in glory. That is a fact and it needs to be acknowledged. The SC has intervened in matters of policy which it should have given a wide berth. CJPs have also taken to grandstanding at a time when the country required equanimity from them. Most importantly, there have been no institutional reforms in the judiciary or regarding the judiciary’s ability to provide justice, even though the judiciary itself has been in complete control. If anything, judicial systems have decayed since 2007. 

Just like in Israel, there’s a need for the higher judiciary here to become less expansive about its idea of what it needs to do. But what has been done here is not about reforming the judiciary and/or creating a balance. It is a blatant attempt to subjugate the judiciary to a government’s political whims. That must be resisted. 

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