GOVERNMENTS and parliaments have come and gone in Pakistan but the obsession with constitutional amendments, especially with those relating to the judiciary, seem to have stood the test of time. A look back at the last few decades suggests that the parliament has so far passed an odd 23 constitutional amendments. While the most recent one, passed as recently as last week, is numbered 26, it is important to remember that three were introduced but never passed. It is also a good moment to understand why I said ‘those relating with the judiciary seem to have stood the test of time’. Out of the 23 amendments, a majority i.e.13/26 (23) have circled around the judiciary and its operations – so an obsession it is.
These 13 amendments in Pakistan can be seen as part of an ongoing power struggle between the executive and the judiciary. What that means in simpler words is that in Pakistan’s parliamentary democracy, the executive is a by-product of the parliament and most parliamentarians (read: majority) align closely with the executive. As a result, the parliament and its committees often fail to exercise any power/control over the executive.
The ruling party or coalition typically expects its members to support government actions – a stance most members adopt without any external hesitation. In this one-sided environment, the judiciary, particularly the high courts and Supreme Court remain the only institutions capable of holding the federal and provincial governments accountable. Consequently, many governments are then inclined to find ways around the judiciary’s role resulting in a high number of judiciary-focused constitutional amendments.
There is, however, a flipside to the above. This is to say that it is not always the judiciary on the receiving end. There are times when the judiciary also encroaches on the boundaries of the parliament and the executive. For example, it was the Supreme Court that endorsed the death sentence of former PM Zulfikar Ali Bhutto in 1979. It was the same court, needless to say, but compromising different judges in 2024 that declared that the late Mr Bhutto was not given a fair trial. The examples of such flawed judgments and many times ‘u-turns’ are countless. It is these very judgments that eventually provided the basis for the 26th Amendment.
Many experts view the most recent bill in two parts: reactive and preventive. The former suggests that the proposed amendment is a response to the real or perceived encroachment by the judiciary, while the latter suggests that the bill had to be proposed to immediately curtail any future judicial acts that may threaten the existence of the current government and the National Assembly.
To wrap up yet another amendment, the following have been the most important changes introduced in the constitution: the appointment of the Supreme Court Chief Justice through a 12-member Parliamentary Committee, instead of seniority being the benchmark, the retirement of the Chief Justice set at age 65 or upon completing a three-year term, whichever occurs first, the introduction of constitutional benches in the apex court, to be constituted by the Judicial Commission from time to time and an annual performance evaluation of high court judges by the Judicial Commission.
The changes that have come with the controversial number 26 increase both the power and influence of the legislature and the executive in key aspects of the judiciary. Whether this power and influence will be used for personal gains and political considerations is all too soon to predict but in good time we shall all see the real purpose and intent behind the hast changes.
—The writer is associate editor and digital team lead at Pakistan Observer
