On 20 October, Pakistan prime minister Shehbaz Sharif’s cabinet approved a bill to amend the country’s constitution and immediately sent it to be passed by the Senate – the upper house of Pakistan’s parliament. The Senate convened despite it being a Sunday, and passed the bill with 65 votes in favour and four votes against. The bill was then rushed to the 336-member National Assembly, or lower house, where lawmakers sat through the night to pass it at 5 am the next day. During discussion in parliament over the bill, members of the Pakistan Tehreek-i-Insaf (PTI) – the embattled opposition party led by the imprisoned former prime minister Imran Khan – alleged that members of parliament from their party had been abducted to force them into voting for the legislation.
The haste and drama that accompanied the passage of the 26th amendment to Pakistan’s constitution are measures of how controversial it is. The amendment has allowed the government to introduce significant judicial reforms that have in effect curtailed the powers of the judiciary, and handed to the executive many of the same powers the judiciary has now lost. In Pakistan, this means that the government, which functions at the behest of the military, will be able to rein in judges if they try to assert their independence.
Among the reforms brought in by the amendment is a provision that allows a parliamentary commission to select the chief justice of the Supreme Court of Pakistan from among the three most senior judges, for a fixed tenure of three years. Before the amendment, the most senior judge of the Supreme Court automatically qualified to become the chief justice and could remain in that position until retirement at the age of 65. The commission to select the chief justice consists of eight members of the National Assembly and four of the Senate. It has representation from parliamentary parties according to their proportion of seats in the legislature. The commission’s selection will be finalised via a two-thirds majority.
Another key reform is that the suo motu powers of the Supreme Court – that is, its powers to exercise its jurisdiction even in the absence of a petition by any interested party – have been taken away.
The widely held view in Pakistan is that the government was in a hurry to pass the amendment before the retirement of Chief Justice Qazi Faez Isa – an event that came later in the same week that the amendment was passed. The newly constituted special parliamentary committee selected Justice Yahya Afridi as the new chief justice, passing over the seniormost judge after Isa, Justice Mansoor Ali Shah. The immediate trigger for this is thought to be Justice Shah’s judgement in July allowing the PTI a share of reserved seats in Pakistan’s national assembly and provincial assemblies, reiterating its standing as a parliamentary party.
The amendment received widespread criticism. The International Commission of Jurists has termed the amendment “a blow to the independence of the judiciary”, with the commission’s secretary general declaring that it enshrines an “extraordinary level of political influence over the process of judicial appointments.” Volker Türk, the United Nations High Commissioner for Human Rights, said the amendment would “seriously undermine” judicial independence.
Inside Pakistan, the PTI is taking steps to challenge the amendment in the Supreme Court. Prominent former parliamentarians and lawyers have filed petitions in the Supreme Court asking for probes into the manner in which the amendment was passed, and disputing its constitutional validity.
AS PER PAKISTAN’S CONSTITUTION of 1973, an elected parliament is the country’s supreme law-making body within a trichotomy of power that also includes the executive and the judiciary. Parliamentary oversight of judicial appointments is particularly problematic in Pakistan because of the dubious standing of the elected parliament. Alleged rigging of the 2024 general election has called the parliament’s legitimacy into question. The Supreme Court is still hearing cases over questions of vote manipulation.
In the 2024 election, the government stripped the PTI of its election symbol – a cricket bat – to hamper its potential to win. The party’s candidates were forced to contest as independents with different symbols – a move that would have confused many voters. When the PTI looked like it would emerge the winner even so, massive rigging allegedly took place to change election results. Sine the PTI could not contest elections as a party having been deprived of its election symbol, the election commission also stripped it of the right to claim a share of seats reserved for women and minorities in the national and provincial governments, which all parties are assigned in proportion to the electoral seats they win in the general category. Even though the Supreme Court later ruled in favour of the PTI getting reserved seats, the government has not yet implemented this decision, adding to the legal and constitutional questions hanging over the legitimacy of this parliament and government.
In this context, if the court decides that rigging took place and declares the election null and void, the sitting parliament could be dissolved. Would the laws and amendments it has passed then hold any validity?
An equally large problem is this parliament’s lack of independence. The Pakistan military’s long-standing involvement in politics is an open secret. The military is known to have manipulated this year’s election in favour of the current ruling coalition led by the Pakistan Muslim League–Nawaz, and at the expense of the PTI. The fact that the current parliament owes its very existence to an unelected, coercive apparatus of the state means that it holds no real power. In the recent past, parliamentary supremacy has been further compromised by previous governments’ excessive reliance on ordinances to serve short-term political interests.
The country’s executive, which is drawn from the same parliament, also holds no real power within the current hybrid martial law state. Changes to the Army Act in 2023 have made the military a direct player in politics, economy and governance at the federal and provincial levels. It is already involved in making key economic decisions via the Special Investment Facilitation Council. On 4 November 2024, the parliament rushed to pass amendments to the Army Act to increase the length of tenure of military chiefs (the heads of the army, navy and air force), adding even more to the military’s power. Where they earlier served for three years, now military chiefs serve for five years, just like an elected prime minister. This is all a consolidation of a parallel, extra-political system controlling politics.
The PTI’s claim that it was unable to connect with a number of its lawmakers before the 26th constitutional amendment was passed suggests the military’s deep and continued involvement in politics, as well as the continuation of its support for the incumbent government and its coercive tactics against any do not align with its aims. Enforced disappearances remain a powerful tool for those holding de facto power to force dissidents and opponents into submission.
NOW THAT THE 26th amendment has been forced through parliament, the result is a change not simply in the constitution but in Pakistan’s pyramid of power. At the very top is the unelected military establishment, followed by the executive, the parliament, and finally the judiciary. The 26th amendment has delivered not just a new judicial structure but complete judicial compliance.
Lawmakers in Pakistan have often described any exercise of independence by judges as acts of judicial overreach. This began with the Lawyers’ Movement in 2007, when the former president Pervez Musharraf suspended more than sixty superior court judges – including Chief Justice Iftikhar Muhammad Chaudhry – who pushed for independence of the judiciary. The lawyers protested for months, after which the judges were reinstated.
In the years following the movement, the Supreme Court seemingly positioned itself in numerous instances as a key independent player. For example, while hearing a case about law and order in Balochistan, the Supreme Court issued an interim order in 2012 holding the Frontier Corps, a paramilitary force, responsible for abducting missing persons. In December 2013, it passed a judgement implicating security agencies in enforced disappearances – a taboo subject for the military establishment. But this pattern now seems to have been effectively broken. Future chief justices will depend for their appointments on the parliament – and, by default, on the executive and the military. There will be de facto competition between the three most senior judges to be in the good books of the parliament, the executive and the military for their ultimate confirmation. Pakistan has a history of judicial submission to the whims of military and non-military executives, but the new Supreme Court looks like it will stoop even lower than its predecessors.
More fundamentally, and despite the ruling coalition’s claims to protect the sanctity of the constitution, a subdued judiciary will not be able to protect the fundamental rights of Pakistan’s citizens. Will the post-amendment judicial system be able to pass a verdict on the alleged rigging of the 2024 election, or any future elections? In the face of the Pakistani elites’ fascination with the centralisation of power, will this judiciary be able to protect the country’s federal structure?
The grand trajectory of politics as well as constitutional and legal “reforms” in Pakistan suggest that it is headed towards becoming a codified autocratic polity. This will exacerbate not only the problems of politics in general but also the many ethnic tensions ailing the country, especially in conflict regions like Balochistan where the military has a persistent and dominant presence.
source : himalmag