The 26th Constitutional Amendment (CA) passed by Pakistan’s Parliament is a blow to judicial independence, the rule of law, and human rights protection—International Commission of Jurists, October 21, 2024
Pakistan’s government has passed a controversial amendment to the constitution that has been accused of weakening the power and independence of the judiciary, throwing the country’s democracy into further crisis—Pakistan’s government curbs judiciary’s powers after alleged harassment of MPAs, The Guardian, October 21, 2024
Legislature is sovereign but the supremacy of the Constitution of the Islamic Republic of Pakistan is above everything—legislators in fact exercise delegated powers given by the people within the framework of the Constitution—Constitution Is Supreme, Friday Times, March 31, 2023
The 1973 Constitution determines jurisdiction of three pillars of the state, Legislature, Judiciary, and Executive. The principle of trichotomy of powers aims at non-interference in each other’s domains, but this has been violated many times in our history and in 50 years of the present Constitution. Supra constitutional actions and their endorsement in the past by judiciary is highly lamentable—Constitution, trichotomy & crisis, Business Recorder, April 7, 2023
The Constitution (Twenty-sixth Amendment) Act, 2024 [26th Amendment], passed in utter haste by the Parliament on October 21, 2024 and received the assent of President of Pakistan on the same day, is controversial and ambiguous as regards judicial reforms are concerned. It has elicited International and nationwide criticism mainly on the grounds of “curbing powers of the judiciary”, violating “right of free and fair access to justice” and “rule of law”.
The several provisions of the 26th Constitutional Amendment ostensibly meant to fix the maladies faced by the country’s ailing judicial system, are nothing but to ensure absolute control over state apparatus by those who matter in the land. Of late, they were worried about regaining “unchallenged (lost) command” over some judges of the Supreme Court and High Courts. The move, marred by allegations of coercion and adductions, by a government suffering from serious legitimacy issue, is all about power, not conforming to constitutional norms and democratic principles. It will further harm and not reinforce the integrity and independence of state institutions, especially its judicial arm.
The main reason behind the move was an unabated tug of war in the Supreme Court related to the constitution of benches and the selection of cases of public importance (sic). It bewildered and baffled almost every citizen of Pakistan. Common people could not expect such a vivid division among learned men in robes. Such a divide was least expected from judges who deviated their path from those who once endorsed the late General Pervez Musharraf’s rule, going to the extent of giving him even the right to amend the Constitution.
In Pakistan, undoubtedly, the higher judiciary’s involvement in political matters has overshadowed its responsibility to address public concerns and the plight of common litigants. This imbalance is reflected in the huge backlog of cases in the Supreme Court and across all judicial levels
On September 17, 2023, many thought that oath as 29th Chief Justice of Pakistan (CJP) by Justice Qazi Faez Isa marked a noteworthy shift in the country’s top judiciary. However, it proved to be yet another delusion-like myth of “independence of the judiciary” on the restitution of judges on March 16, 2009, and then the legacy of CJP Chaudhry Muhammad Iftikhar.
The predecessors of Justice Qazi Faez Isa, including, Mian Saqib Nisar, Asif Saeed Khosa, Gulzar Ahmed, and Umar Ata Bandial, elicited widespread criticism for what many alleged “misplaced judicial activism” coupled with controversial decisions and subjective interpretations of the Constitution of the Islamic Republic of Pakistan [“the Constitution”] —proving detrimental and negatively impacting judiciary’s image. Accusations of collaboration with the military establishment and decisions aligned with political agendas made their legacies controversial, and so now that Justice Faez Isa retired on October 25, 2024.
In Pakistan, undoubtedly, the higher judiciary’s involvement in political matters has overshadowed its responsibility to address public concerns and the plight of common litigants. This imbalance is reflected in the huge backlog of cases in the Supreme Court and across all judicial levels, underscoring the system’s inefficiency thus highlighting the apparent indifference towards prompt dispensation of justice for all—the main pillar of democracy.
According to many, the elevation of Justice Qazi Faez Isa as CJP was a welcome departure from the alleged judicial overreach of his predecessors, but it proved to be an illusion. Now the Pakistani nation is optimistic that the 30th CJP, Justice Yahya Afridi, would bring positive reforms to the judicial system by improving access to justice, quality of judges, and swift dispute resolutions.
The 26th Amendment has devised a new procedure for appointments of the Chief Justice of Pakistan, and judges of the Supreme Court and High Courts by amending Article 175A of the Constitution—changing the composition of the Judicial Commission of Pakistan by including members of Parliament having a majority in any decision-making process.
Subsequent to the approval of the 26th Amendment on October 21, 2024, Justice Yahya Afridi, was nominated on October 22, 2024, as Pakistan’s 30th Chief Justice, bypassing two illustrious judges senior to him, Justice Syed Mansoor Ali Shah and Justice Munib Akhtar. President of Pakistan, Asif Ali Zardari, notified Justice Yahya Afridi on October 23, 2024, and he took the oath of his office today (October 26, 2024) for a term of three years.
The expectation is that the new CJP in his 3-years tenure will address this systemic challenge, ensuring that all legal matters are resolved promptly but fairly, providing citizens with an efficient and accessible judicial process.
The prevalent main malady in Pakistan is the prolonged duration of legal proceedings, often spanning over decades before reaching finality. Will constitutional benches solve this chronic issue? In many cases, not concerning political matters, interpretation of any provision of the Constitution is involved. All such cases after the 26th Amendment can only be heard at the Supreme Court and High Courts by benches constituted under the newly-inserted Articles 191A and 202A.
The expectation is that the new CJP in his three-years tenure will address this systemic challenge, ensuring that all legal matters are resolved promptly but fairly, providing citizens with an efficient and accessible judicial process. Even before taking the oath, Justice Yahya Afridi showed keenness to improve the operational side by issuing administrative guidelines “for the Supreme Court Registrar Office with regard to the transfer of cases involving some interpretation of the Constitution to the newly formed Constitutional Bench of the SC”.
For meaningful judicial reforms, it is imperative to establish a pragmatic and workable mechanism to ensure that cases are not only assigned promptly but are also resolved on time. Introducing a 'Turnaround Time' (TAT) framework for case adjudication is important, with clear stipulations and guarantees to expedite the judicial process. These measures are vital for enhancing efficiency, transparency, and public trust in the judiciary’s ability to deliver justice in a timely, just, and befitting manner.
Historically, there has been a notable pattern of the judiciary, particularly judges from higher courts, encroaching on the government’s legislative functions, often stemming from a limited understanding of the separation of powers. The hope is that under the leadership of Justice Yahya Afridi, the judiciary will adhere strictly to its constitutionally defined role and functions. The persistent overreach by the judiciary has significantly restricted the government’s powers.
For maintaining balance under the principle of trichotomy of powers, the judiciary’s role along with other institutions in preventing the executive from exploiting public office for personal gains, cannot be denied. Simultaneously, watchful eyes are required to check the judicial branch for excessive use of powers.
Judicial independence is intrinsically linked with seamless accountability. The judges at all levels and their staff must not even think of misusing their powers/offices either for personal gains or as tools to advance their political ideologies. Striking this equilibrium is extremely crucial for upholding the principles of a functional and unbiased judicial organ that alone can ensure an efficient and pro-people governance system.
The new CJP bears the responsibility of reevaluating the Supreme Court Rules, aiming to enhance clarity, efficiency, and accessibility. Incorporating modernisation measures, digitisation, and leveraging information technology/artificial intelligence can streamline legal procedures, ultimately improving overall judicial efficacy.
Justice Yahya Afridi should, as a matter of priority, enhance transparency within the judiciary to combat corruption, instituting a robust complaint mechanism, particularly for issues directly related to the judiciary and judges. Instead of discreetly resolving complaints through “mutual discussion”, the process should be open, fostering public confidence in the system. The recent initiative of the apex court of live telecast of court proceedings, especially in matters involving the court’s powers and his office, is appreciable. One hopes that the new CJP also continues with the order of his predecessor mandating the registrar to provide information about the Supreme Court’s staff under the Right to Information Act, 2017. Such actions prove the commitment of the highest judicial forum to bolster public trust and accountability within the judiciary.
In our polarised society, misinformation and baseless allegations against the judiciary, politicians, and armed forces run rampant across social, electronic, and print media without accountability. It is incumbent upon the three pillars of the state to collaboratively enact robust legislation and enforcement mechanisms countering fake news and propaganda while preserving the right to free speech.
Concurrently, the new CJP bears the responsibility of reevaluating the Supreme Court Rules, aiming to enhance clarity, efficiency, and accessibility. Incorporating modernisation measures, digitisation, and leveraging information technology/artificial intelligence can streamline legal procedures, ultimately improving overall judicial efficacy.
As head of the Law and Justice Commission of Pakistan, the new CJP needs to initiate public debate, seeking proposals for implementation of a constitutional amendment(s) for improving the selection/removal process of judges of the existing five high courts and the Supreme Court.
Justice Yahya Afridi can make his tenure historic by completing a comprehensive reform agenda as elaborated in a two-part series in these columns, through consensus among his fellow colleagues and Chief Justices of five High Courts of the country. We still need amendments in Article 209 of the Constitution to transfer the accountability powers of judges from the judiciary to the parliament, aligning with international standards.
Pakistan’s state and governance system have consistently been falling short of meeting constitutional obligations regarding citizens’ rights to life, security, access to justice and due process of law, freedom of speech, belief, religion, assembly, and association. Safeguarding these guaranteed inalienable fundamental rights depends largely on the judiciary operating without any external influence or agenda, efficiently, independently, without any fear and favour.
There are expectations from all quarters and the public at large that Justice Yahya Afridi, during his tenure, would prioritise to transparency, fairness, and freedom from discrimination. Historically, chief justices of Pakistan (in his last few months as CJP, Qazi Faez Isa also fell prey to it) have exploited their arbitrary powers in the formation of benches, relying on a select few “like-minded judges”, especially in cases having political implications. One hopes there will be a complete departure from this malpractice under the leadership of Justice Yahya Afridi. In the coming days, he would also ensure that the judiciary operates impartially and effectively to uphold the fundamental rights of citizens, enshrined in the Constitution.