Adv. Ameer Ali Hashmi
The Bill on Constitutional (27 th Amendment), has provoked one of the biggest constitutional debates within Pakistan in recent years. The shift, which the administration terms it as core type of reforms, twists the balance of power between the executive and the judiciary. Critics issue warnings that it will have extensive implications on judicial independence, the legal profession and access to justice by the ordinary citizens, whereas supporters opine that it will accelerate constitutional adjudication.
The amendment focuses on the constitutional court at the Federal level (FCC). This new court will be dealing with constitutional matters only, including legislative, fundamental-rights petitions and public-interest issues. This lowers the traditional role of the Supreme Court as the supreme constitutional protector and it is reduced to a mere court of appeal in civil and criminal law.
The fundamental change concerns judges and legal experts. A two-seat Supreme Court bench cleared soon after the amendment was ratified, a very unusual step that brought significant institutional problems. The national and international press reported their resignations as a protest of the constitutional order to which they believed to have been assaulted and loss of judicial independence. Besides undermining the internal unity of the judiciary, such resignations cause concern into whether the rest of the justices would feel constrained or coerced in further constitutional matters.
The law fraternity has reacted in a similar measure. Individual lawyers and bar associations have also been concerned that the process which the FCC uses to select its judges which they believe is too much politicized by the administration may end up giving the court that is nothing more than a reflection of the governments agenda. The judicial independence is especially vulnerable when the judges are removable, appointable, or transferable with methods that allow manipulation with politics as witnessed in the history of law enforcement in Pakistan. Several lawyers are worried that without the well-developed protection, FCC can become not a fair custodian of the Constitution but an instrument to dictate the interpretation of the Constitution.
In addition to institutional challenges, the change has practical consequences to the justice seekers. The Supreme Court has over the years been a direct route to safeguard basic human rights especially of individuals who are being activists, journalists, political dissidents, and persecuted groups. When constitutional jurisdiction is transferred to the new court, litigants may take more interest in whether the new FCC will be entitled to the same level of autonomy and moral authority enjoyed by the Supreme Court in the past. Once lost, the trust is very hard to regain.
The increased benefits and indemnities of the top officials of the state, especially those in the security organs has also become a cause of concern in the amendment. Critics believe that such actions would shield the powerful sides to court examinations. Restricting court oversight can diminish the opportunities of openness and fair government in a culture where the citizen monitoring and accountability are already problematic issues.
The advocates of the amendment state that the backlog of the Supreme Court could be reduced and the cases could be resolved much faster with the experience added to them. They cite successful experiences of specific institutions, e.g. constitutional courts in such countries like Germany or India. Constitutional courts are however only helpful when it is built in a system where independence, tenure security and open appointment are part of the system. Avoiding these safeguards, specialization may be a politically expedient restructuring and not a real change.
The next few months will be hectic. The amendment has in the past been questioned in several petitions. Although it has a limited jurisdiction, the Supreme Court still has the power to reason and understand the amendment and whether it is aligned to the core values of the Constitution. The reaction of the senior judiciary within Pakistan be it in joint sittings, comprehensive decisions or even principled objections shall have a bearing on the constitutional future of the nation in the coming years.
There are also broader political implications of the amendment. When the judicial system is perceived to be an arm of government, it jeopardizes public confidence in the legal system. Lawyers can find it less desirable to case rights-based actions and the common citizen will lose confidence in the ability of the courts to protect them against the abuse of state authority. This lack of trust threatens both the legal rights as well as the stability of the democracy.
Lastly, the 27th Amendment is not only a procedural change. It discusses two fundamental pillars of the Pakistan constitutional philosophy which include judicial independence and separation of powers. When it is put in place in the absence of firm institutional protection, it can undermine the judicial power and diminish accountability and make justice less attainable to the very citizens that the Constitution is designed to protect.
