Judicial capture: Lawyers react to ‘diluted’ 26th Constitutional Amendment Bill – Pakistan

Barrister Asad Rahim minced no words about the implications of the amendments on the judiciary’s independence. “The post-Musharraf consensus is officially over. The 26th Amendment is the biggest reversal for judicial independence in three decades,” he said.

“Appointments of judges have been handed back to the executive, which — as our history is witness — should have no business in such a selection.

“The method for handpicking the Chief Justice of Pakistan, among a list of three, will ensure a game of thrones every few years, thus wrecking a system that was until now immune to such intrigue,” he argued.

“Judges that were confirmed as future chief justices as late as yesterday will likely retire before ever making it, in favour of a system that will naturally prefer pliant or partisan candidates.

“Taken together, the 26th Amendment has dealt a body blow to Pakistan’s democracy and its constitutional order,” he lamented.

For lawyer Moiz Jaferii, the current draft being tabled “is clearly a climb down from the first attempt at steamrolling through an entirely separate apex court and leaving the Supreme Court supreme in name only.”

He added, however, that “it still suffers from the same basic problem: the idea of the executive picking a chief justice and a parliamentary committee determining which superior court judge can hear constitutional matters are both direct attacks on judicial independence.

“They suffer from the same flaw that the original amendment did, in that they bring the pillar of the judiciary into a measure of subservience to the legislature and the executive.

“Where the first amendment draft spoke of the first chief justice to be appointed by the prime minister, the intervention of a parliamentary committee is now to be a continuous process. These Constitution benches and the picking of judges from within the superior courts if they are deemed worthy are a separate court in all but name. The designs behind them are little more than an attempt at bringing independent judges to heel.

“The manner in which this amendment has been attempted and today finally likely to be passed is a story of malice in itself — the threat of brute or brutal force plain for all to see.

“Championed by politicians in the name of parliamentary supremacy, it is clear to everyone where the actual interest lies.

“An election has been stolen. There is a government crowned with an illegitimate mandate. The Constitution must now pay the price lest the right to that crown be fairly adjudicated.”

According to lawyer Rida Hosain, “the fundamental problem with the previous drafts, and the current one, is the obvious aim to capture an independent judiciary.”

The CJP is to be appointed from a panel of the three senior most judges by a parliamentary committee. The government commands the majority in the parliamentary committee, and the government will have a majority say in the appointment of the CJP, she explained, adding that the government is a party before the Supreme Court. “A litigant (such as the government) cannot choose the head of the institution where it will appear as a party.”

Furthermore, she added, “a commission that includes government representatives will ‘evaluate’ the performance of superior court judges. Allowing government representatives to evaluate judicial performance is tantamount to giving the government the right to punish and reward judges. The government may render an adverse evaluation to target a judge that has given decisions against them.”

“The amendments are a huge blow for judicial independence. The professed aim of the amendments is to ‘depoliticise’ the judiciary. In fact, the amendments do the exact opposite. The government has effectively inserted itself into:

• the process of appointment of the CJP,
• the evaluation of performance of superior court judges, and
• the creation of the constitutional bench.

“This is not depoliticising; this is an attempt to exert control and influence over the superior judiciary. An attack on judicial independence is an attack on fundamental rights — a judiciary that is not independent cannot dispense justice without fear or favour. This impacts all citizens,” she stressed.

“The proposed Constitutional Amendment betrays the government’s desire to emasculate the judiciary by giving the government’s members a majority on the judicial commission,” said lawyer Mirza Moiz Baig. “Given that the reconstituted judicial commission will now also determine the composition of the constitutional benches, the Amendment effectively seeks to control which judges will hear cases involving the government.

“Such concerns are further aggravated by the stipulation that the CJP will be selected from a panel of three by a parliamentary committee with proportionate representation.

“The government of the day would, thus, have a majority on not only the judicial commission selecting judges to the superior judiciary but also on the parliamentary committee selecting the CJP.”

According to lawyer Basil Nabi Malik, “the amendments are quite diluted when compared to the initial drafts that had been circulating.

“This draft, compared to the earlier ones, is more workable,” he said, adding however, that there still remain certain concerns which require redressal.

“Firstly, the role of the special parliamentary committee shall be controversial, especially its ability to choose a CJP from the top three judges. Secondly, the disconnect of the Constitution benches from the CJP shall cause administrative issues, and shall act as a divide in the unity of the institution.

“There shall arise several questions as to the remaining authority of the CJP, and his ability to martial his justices in times of crisis,” he said.