THE much-talked-about 26th amendment has become a part of the Constitution after its passage by the Senate and the National Assembly with the required two-thirds majority. It envisages judicial reforms aimed at ensuring parliamentary supremacy and strengthening the democratic process but the opposition PTI claims the changes do not reflect the true will of the people of Pakistan.
The amendment comes in the backdrop of a widely-held belief that with the passage of time the superior judiciary was deviating from its original mandate and encroaching upon the domain of Parliament and the Government. The judiciary got almost total say in the appointment of judges after adoption of the 19th Constitutional Amendment. Though there were two bodies – Judicial Commission and Parliamentary Committee for appointment of judges but in practical terms the parliamentary forum was rendered ineffective. Under the new scheme of things, a Parliamentary Committee having proportional representation of all parties will recommend name of the Chief Justice from amongst three senior most judges of the apex court and in case of refusal the name of the fourth judge can be considered. The 26th Amendment fixes the tenure of Chief Justice of Pakistan to three years unless he sooner resigns or attains the age of sixty-five years or is removed from his office in accordance with the Constitution, whichever is earlier. The claim that the powers of the judiciary have been clipped has no sound basis as governments and parliaments elsewhere have the authority to appoint judges and we should also learn to trust our parliament and the parliamentarians hoping they will not make choices on considerations other than merit. Similarly, the idea of a separate Federal Constitutional Court (FCC) has been dropped at the instance of Maulana Fazlur Reham and instead the concept of Constitutional Benches both at the Supreme Court and High Courts has been introduced. This measure also has no bearing on the independence of the judiciary as these benches would be formed from amongst the incumbent judges. It is laudable that the responsibility to hear constitutional petitions and issues has been vested to the benches affording opportunity to other judges to focus on delivery of justice to ordinary litigants whose cases linger on in high courts and the Supreme Court not for weeks and months but for years and sometimes decades. The parliamentary oversight of the performance of the judges is also a step in the right direction as it has the potential to help improve performance and delivery of judges and stem corrupt tendencies. If there is accountability for every office holder then why not judges?
The President, the Prime Minister and the Cabinet have to make decisions on good judgement but their decisions and orders were unnecessarily interfered with by the judiciary, hampering performance of those who returned to power with the support of the electorates having great expectations vis-à-vis a change in their lives. In this backdrop, the 26 Amendment envisages that the advice of the President, the PM and the Cabinet cannot be challenged. The Government deserves credit for its efforts and willingness to build consensus on the new changes as it showed so much flexibility that the final draft is altogether different from the original one. It is said that the amendment has been adopted in haste by the two houses but it is also a fact that formal and informal debate on the proposed amendments continued for about a month and these were also minutely discussed by the Parliamentary Committee meetings which were attended by representatives of all parties including the PTI. It is also because of the role played by JUI(F) leader Maulana Fazlur Rehman that the PTI too has no major objection except notional fears about the amendments, rather it concurred 100 percent with the draft proposed by the Maulana which is adequately reflected in the final document. The adoption of the 26th Amendment is neither a victory nor a defeat for any institution or party. The interests of the country demand that all players confine themselves to the framework of the Constitution.
