The 26th constitutional amendment was passed in the wee hours of October 21, 2024, within just a few hours of debate in the upper and lower houses of the Parliament. The approval from the cabinet and the urgency to see it through over a weekend turned the entire exercise into a mockery of legislative business. Parliamentarians from at least three different parties reported coercion, threats, and abduction of their members or family to secure the two-thirds majority that was required to reign in the amendment.
Till it was passed, the final draft of the bill, now act, was not disclosed or shared with the public for any comments or feedback. The agenda and the schedule of the assembly sessions kept changing till the last minute. The people were misled into believing that at that ungodly hour, the parliamentarians had gathered to amend the Legal Aid and Justice Authority Act. There was no mention of introducing or debating any constitutional amendments in the agenda until the very last minute when the house chose to proceed with the debate and voting on the controversial amendments. All this urgency, secrecy, and theatrics, only to later experience proponents proclaiming how participatory, transparent, and consensus-based, the entire process towards the amendments had been.
This is where Pakistan Peoples Party (PPP) chairman Bilawal Bhutto Zardari comes in. His party is a major partner of the coalition government currently ruling the country and his party ostensibly played a key role in forging the erstwhile described consensus.
However, Bilawal’s shame does not end with the questions raised about the process and timing alone. His shame goes all the way to the substance of what he has bargained for and how he has sold his party’s soul to the devil, to the intellectually dishonest and at times incriminatingly false narrative he spewed against another pillar of state altogether – the judiciary.
His shame is also embedded in the text of the eventual draft that was passed in which he had to compromise a great deal to agree to the lowest common terms with allies, particularly the JUI-F to ensure the passage of these amendments.On all counts, Bilawal emerged as a loser who stood exposed in his quest for power which he vowed to push through a ‘brute majority’. His insecurities feeding into his fears, making him more and more threatened at the thought of an independent judiciary became louder as his frustration and anxiety to lure the Maulana became visible in his tone and demeanour. At one point, he gave it all away when in an interview with a private television channel, he expressed a lack of confidence in the then senior-most judge’s ability to ‘control’ the other judges should he become the Chief Justice by virtue of seniority. ‘Control’ over the Supreme Court is key behind all of this.
Bilawal, relying on what he may have picked up from his time in the UK, started speaking about parlemaan ki baladasti (parliamentary sovereignty) which does not apply in its absolute form even in the UK, let alone in Pakistan where we have a written constitution
Concepts like ‘parliamentary sovereignty’ and parliament as the ‘only law-making body’ were employed to obscure the understanding of constitutional dispensation in our context. In Pakistan, we often speak about ‘aaein ki baladasti’ (supremacy of the Constitution). However, Bilawal, relying on what he may have picked up from his time in the UK, started speaking about 'parlemaan ki baladasti' (parliamentary sovereignty) which does not apply in its absolute form even in the UK, let alone in Pakistan where we have a written Constitution.
It is also a misnomer that the parliament created the Constitution; in fact, the Constitution has created the parliament and other institutions and pillars of the state, each with their role, scope, and ambit to ensure the separation of powers and a system of checks and balances between them. Each organ must exercise its powers within that framework. This means that while parliament may have the power to amend the Constitution, it does not have the scope to subjugate another pillar of the state to render it less effective or shrink its space or its constitutional role. That would be encroachment and whichever pillar does that to others, it will be susceptible to criticism.
Whenever the judiciary was seen to have overstepped, people criticised their judgments. Today, the overstepping has been done by the Parliament, and so, it too should be condemned for its unconstitutional actions. Likewise, case law is a recognised source of law in all jurisdictions the world over. Acts of parliament are only one of the sources of law. Proponents of the 26th amendment suggesting that only acts of parliament are law is incriminatingly ignorant if not dishonest. If a judgment is in the field, it is also a source of law and it needs to be treated as so.
Moreover, complaining about ‘PMs being sent home’ attempts to create a smokescreen of impunity that does not exist. It appears to be the new elite bargain that the politicians want to secure for themselves. Why should PMs not be accountable? Examples of countries in the west where judges are elected by executive and legislature were shoved at our faces to make a case for changing the judicial appointments process, but references to PMs resigning from offices themselves without there being the need to take them through judicial oversight in such countries was never brought up. The comparisons, therefore, just don’t hold.
By not strengthening the independence of the judiciary from such influence and giving the power back to the executive and parliament to appoint and evaluate judges, Bilawal has paved the way for more manipulated judgments to ensue in times to come
Every platform available was utilised by Bilawal to feed this opium to people and redirect people’s anger towards the judiciary as an institution by recounting past injustices of a judiciary that was captured by powers that be. He didn’t bother telling people that judicial appointments then were done very differently than how they are done post the 18th and the 19th amendments which actually paved the way for a more independent judiciary, a judiciary that was willing to reflect on those very decisions and had gone on to reverse some of those decisions as well, which is why his anger and grudge is misplaced and misdirected. In any case, constitutional amendments should not be based on grudges and personal vendettas. A theme that ran common in almost all speeches by the parliamentarians in favour of this amendment from Sherry Rehman to Khawaja Asif, to Bilawal and others.
A judiciary, back in the hands of the executive and parliament (who themselves are susceptible to pressure), will again be susceptible to political pressure and string, leading to the anomalies that Bilawal kept complaining to the people about. The judges too have been victims of the same invisible hands that parliamentarians shook or endured at various points in our history, but Bilawal’s victim-blaming was uninhibited, vicious, and almost deliberate - as if vengeance had found a new target. A target that was comparatively easier in reach than the real puppeteers could ever be.
By not strengthening the independence of the judiciary from such influence and giving the power back to the executive and parliament to appoint and evaluate judges, Bilawal has paved the way for more manipulated judgments to ensue in times to come. He has paved the way for the very mischief he thought he would curb. Whether he did it in his naivety as a pawn who himself got played is something only time will tell. But if he actually believes that what he has done is in any way a solution or worse a payback/revenge for those past decisions, in that case, he is clearly unfit to be a leader for he has no vision or wisdom to see what he has helped unleash.