THE 26th Constitution Amendment was finally passed by the parliament after quite a few hiccups. The amendment was severely criticized by the PTI and certain segments of the legal community. A lot can, however, be said in favour of the amendment also. For the first time in the country’s history, a bi-partisan Parliamentary Committee selected the new Chief Justice of Pakistan. The 26th Amendment to the Constitution made some far-reaching judicial reforms, including the provisions for the formulation of a special bench in the Supreme Court. This court will hear constitutional cases only.
PTI, the main opposition party and certain sections of the lawyer’s community have threatened to launch a protest movement against the passage of the amendment. Some legal members of the legal community have warned that the new law suffers from lacunae and that more legislation would be required to fix the law. I think that their apprehension may be correct. Justice Yahya Khan Afridi, the Chief Justice of Pakistan, is an upright and independent minded judge. He has a reputation for being a textualist who believes in the trichotomy of power. Justice Yahya also believes in a less expensive interpretation of the Constitution.
Justice Isa, the outgoing Chief Justice is likely to be remembered as a very courageous, honest and a hard-working Judge. The PTI and other groups with specific agendas will continue criticizing him and call him controversial. Declaring the Bhutto hanging as illegal; the live streaming of cases in the Supreme Court and over turning the Lahore High Court decision, which declared the tribunal carrying out the trial of Musharraf unconstitutional, and then finding Musharraf guilty were some of the important landmark decisions which the Supreme Court took place during Qazi Isa’s watch.
Qazi Faiz Isa is, perhaps, the only judge who faced a presidential reference against himself before he became the Chief Justice. He successfully and courageously defended himself in that trial and the reference was quashed by his fellow judges of the Supreme Court. Qazi Isa said from the very beginning that he neither wanted an extension nor a reappointment, and he stuck to his decision till the end in spite of insinuations to the contrary. Turning to the role of the 12-member Parliamentary Committee, established after the passage of the 26th Amendment, the Committee received the names of the three senior-most judges from the Law Ministry. It should be noted that, despite previous consultations, the PTI members of the Parliamentary Committee boycotted the actual nomination process of the Chief Justice.
Initially, the PTI planned to launch a protest movement with the support of lawyers sympathetic to its cause. Many Bar Councils and Associations, however, congratulated Justice Yahya Afridi and refused to be part of any protest. The very recent win of the Asma Jahangir/Azam Nazir Tarar group in the elections of the Supreme Court Bar Association elections, will be a complete game changer and dampen the spirit of the Hamid Khan Group of lawyers associated with PTI.
Even earlier, despite the Hamid Khan Group’s criticism of the Chief Justice’s appointment, eminent lawyers like Yasin Azad, a former President of the SCBA, saw nothing wrong with the new procedure for appointing judges and the Chief Justice. Advocate Azad says: “The amended law curtailing the Chief Justice’s discretion is an improvement over the old law. On the operation of the amended law, however, he feels that many loopholes may arise, especially on the formation of the constitutional benches which may require further legislation or even another constitutional amendment. On the political front, the KP Chief Minister vowed to start a movement, if anybody else other than the senior-most judge was made the CJ. But his bluff was exposed, when he was present in the oath taking ceremony of the new CJ.
The ruling alliance showed political wisdom by talking to all opposition parties before the Amendment was passed. The PTI was represented by Omar Ayub, PTI Chairman Barrister Gohar Ali Khan and Barrister Ali Zafar, Barrister Khan had told the media: “We have agreed upon 98% of the clauses. The special committee has tailored those according to our recommendations”. Barrister Gohar Khan asserted that he would talk to the PTI founder in jail, and vote for the amendments only if he received permission from the founder. The PTI agreed with the amendment but did not vote for it in the Senate or the National Assembly. The procedure for the formation of the constitutional bench has yet to start. Some complications may arise which would require further legislation or even the passing of the 27th Amendment. For now, according to some sources, simple legislation may be moved to increase the number of Judges to 25 in the Supreme Court. Some tweaking in the composition, working and strength of the Practice and Procedure Committee may also be done.
—The writer, based in Islamabad, is a former Health Minister of KP.
