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Progress or power grab?


  • Noor ul Ain Ali
  • Oct 23, 2024

Pakistan’s 26th Constitutional Amendment has sent shockwaves through the legal community, and for good reason. It’s been hailed by some as a much-needed reform to improve transparency and accountability in the judiciary. But for others, it’s a dangerous overreach that risks compromising the very independence of our courts. So, what’s really going on here? Let’s break it down.

Passed in a whirlwind, with Parliament pushing it through in less than 24 hours and keeping the whole process under wraps, the 26th Amendment isn’t your everyday piece of legislation. It changes how our judicial system works at its core, especially when it comes to appointing judges to the Supreme Court and High Courts. According to critics like the International Commission of Jurists (ICJ), these changes could open the door to political interference, tipping the scales of justice in favor of those in power.

On the surface, the argument for the amendment seems reasonable. The government says it wants to make the judiciary more inclusive, transparent, and accountable. By adding members of Parliament to the Judicial Commission of Pakistan (JCP)- the body that nominates judges, the aim is to make the system less elitist and more representative of the country’s broader population.

Think of it this way: before, the JCP was mostly made up of judges, which made the process of judicial appointments somewhat insular. Now, the government says, adding voices from the National Assembly, Senate, and even a non-Muslim or female representative could bring fresh perspectives and make the process more open. In theory, that sounds like a step in the right direction, right?

Plus, there’s the issue of inefficiency. The amendment gives the Supreme Judicial Council (SJC) the power to recommend the removal of judges not just for misconduct, but for being inefficient. The goal here is to make the courts more accountable, and to ensure that judges who aren’t pulling their weight face consequences. Again, on paper, that doesn’t seem like a bad idea.

But- and it’s a big but, there’s a lot more to this amendment than just “transparency” and “accountability.” Critics argue that these changes actually undermine the independence of the judiciary by giving the executive and Parliament way too much influence over the courts.

Let’s start with the Judicial Commission. Under the new rules, judges are no longer in the majority. So, while the government says this makes the process more democratic, the flip side is that it also gives political figures more say in who gets to be a judge. And not just any judge, judges in the highest courts of the country. This means that decisions on critical cases, especially those that may involve the government or its interests, could be influenced by the very people who appointed the judges in the first place. That’s a slippery slope.

Then there’s the appointment of the Chief Justice of Pakistan (CJP). Traditionally, the most senior judge would automatically take the top spot. But now, a “Special Parliamentary Committee” made up of political figures gets to choose the CJP from a shortlist of three senior judges. No clear criteria. Closed-door meetings. That sounds a lot like a recipe for political interference.

And what about this new “constitutional benches” system? The JCP, now influenced by politicians, gets to decide which judges sit on benches that hear cases involving the Constitution and fundamental rights. These benches will deal with some of the most politically charged cases in the country. If these benches are handpicked by a body with political ties, how independent can we expect their decisions to be?

This amendment doesn’t just change how judges are appointed. It changes the very nature of our judicial system. If the courts are no longer independent, if they are subject to political influence, what does that mean for the average citizen?

For starters, it could seriously undermine trust in the judiciary. If people start believing that the courts are just another arm of the government, where do they turn when their rights are violated? The whole point of an independent judiciary is to act as a check on the other branches of government, ensuring that no one- no matter how powerful is above the law. By shifting power toward the executive and Parliament, this amendment could weaken that essential check.

There’s also the issue of efficiency versus fairness. Sure, holding judges accountable for inefficiency sounds good, but what does “inefficiency” even mean? The amendment doesn’t define it. Without clear guidelines, this could be used as a tool to remove judges who don’t toe the line politically. Today, inefficiency could be the excuse. Tomorrow, it could be something else. That’s not accountability, that’s control.

So, where does that leave us? The 26th Amendment is a mixed bag. Yes, reforms were needed to make the judiciary more transparent and accountable. But the way this amendment has been pushed through-with no public consultation, in record time, raises red flags. We need to ask ourselves: is this really about improving the judiciary, or is it about consolidating power?

In the future, this amendment could have far-reaching consequences for judicial procedures in Pakistan. Courts may become slower as cases are re-assigned to newly appointed “constitutional benches.” The independence of judges could be compromised, with political influence creeping into decisions that should be made impartially. And once the judiciary loses its independence, getting it back won’t be easy.

Ultimately, this amendment could set a precedent that undermines the separation of powers and weakens the rule of law in Pakistan. To prevent that, there needs to be greater public involvement and scrutiny of such significant legal changes. After all, an independent judiciary isn’t just a cornerstone of democracy- it’s the last line of defense for our rights and freedoms.

Author

Noor ul Ain Ali

The writer is a freelancer.

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