BY : Dr Syed Akhtar Ali Shah.
Finally, the cat is out of the bag. The government with their allies has divulged their intentions to bring 26th Constitutional amendments in the garb of judicial reforms.
The contents of the bill as revealed in a section of press suggest drastic changes in the basic structure of the Constitution. While discussing the changes, these parties must realise that they had been boosting of passing of 18th amendment as one their most significant achievements in pursuance of the “Charter of democracy. With its passage NWFP was renamed as Khyber Pakhtunkhwa, 58 ( 2) ( b) was done away with and provincial autonomy was given by abolishing the concurrent list. Above all independence of judiciary was cited as a crowning achievement.
As today, judicial reforms are being discussed. Therefore, we have to realise that a new procedure for the judges was introduced in the Article 175(A) under the 18th amendment to the constitution of Pakistan. The responsibility of appointing the judges was handed over to the Judicial Commission, a body of seven people and headed by the Chief Justice of Pakistan. It also includes two senior judges of the Supreme Court, the Attorney General, the Federal Law Minister, a retired judge of the Supreme Court, and a senior advocate.
Moreover, Article 177 states that the president can also appoint judges in accordance with Article 175(A). The intent & purpose was to ensure to rule out that no court gives a legal cover to military adventurism in the future.
In the above context, the new move in the cover of judicial reform is to undo Article 175 A. The proposed new amendment a draft of which is now an open secret, while the government mentions it a working paper, having not gained finality. However, they intend to do away with the seniority principle and instead five names of the senior most judges of the Supreme Court would be proposed to the Prime Minister. From among the proposed panel, the Prime Minister will have the discretionary power to select one of them. Thus, the lever of appointment of the judges will be shifted to the PM (Executive). This will make the executive omnipotent in terms of appointments. This is against the spirit of the Article 175 which emphasis upon the separation of executive from the judiciary.
The other dangerous move is to make the judges of the High Court transferrable from one province to the other, making them vulnerable to pressures, in particular judges of the Islamabad High Court.
The other salient features are setting the tenure of the Chief Justice of Pakistan to fixed three years, bringing changes to the Supreme Courts, high courts, and the Suprme Judicial Councils,
Although, on September, the Chief Justice Qazi Faez Isa issued a clarification regarding possibility of an extension, whereby he told the law minister if the proposal was enacted as individual- specific piece of legislation, it would not be something he would accept, however, he appeared to have agreed if it was for all.
The other amendment is to undo the “new insertion” into Article 63 A’s interpretation of law makers’ votes not being counted if they voted against their party stance. According to the new amendment the votes so cast would be valid.
In this whole scheme the most dangerous aspect is the functions, powers, and method of appointment not only of the judges of the High Court and elevation to the Supreme Court but also of the Constitutional Court. The insertion of new clauses will nullify the independence of judiciary as enunciated in the Preamble of the Constitution. The Prime Minister of Pakistan will have the authority to appoint the Chief Justice and other judges of the Constitutional Court through a Committee of the National Assembly, while the first Chief of the Constitutional Court will be appointed by the Prime Minister. Appeal against de-seating would be heard by the Constitutional Court. The amendment also includes that Judicial Commission will supervise the performance of the judges of the High Court and the Supreme Court. Besides, the head of the Judicial Commission will be the Chief Justice of the Constitutional Court.
The eligibility criteria for appointment of the judges to the Constitutional Court is quite flexible, whereby the Prime Minister can do cherry picking.
The reference to ban a political party instead of sending to the Supreme Court, would be sent to the Constitutional Court. This is being taken as preparation to ban Pakistan Tehrik e Insaf, amidst apprehension to keep Imran Khan in jail for long.
A cursory look at the amendments suggest that in all likelihood will demolish the basic structure of the Constitution. This will eventually compromise the independence of the judiciary as basic feature of the Constitution, having disastrous consequences for fundamental rights including political freedoms. While all is said and done, the timing of the amendments, method of appointments and powers of the Constitutional Courts do not appear to have been initiated with bonafide intentions
