Unpacking the constitutional package — whatever little we know about it

KARACHI: With the government largely tight-lipped on what exactly its ‘constitutional package’ proposes to do, here are some questions that arise after a look at whatever little information there is out there on the package.

Seemingly, one of the central elements of the amendment package is the creation of a separate Constitutional Court, which would handle cases related to constitutional matters, including those that come under Articles 184, 185, and 186. This would raise questions about the proposed court’s relationship with the Supreme Court. Will it be an equal body to the Supreme Court, or will it operate as a specialized court with its own distinct powers but under the Supreme Court? And will the new court be staffed by retired judges or new judges or Supreme Court judges? Who will appoint these judges? Is there a chance that Chief Justice Isa could head it?

Government sources argue that the Constitutional Court is necessary to relieve the Supreme Court of its overwhelming backlog -- over 60,000 cases are reportedly pending. These cases, many of which involve ordinary litigants, have suffered long delays and many cases have been pending for decades. According to the government, a Constitutional Court would allow the Supreme Court to focus on providing timely justice to Pakistan’s 250 million citizens, while the new court could handle constitutional matters solely.

This justification though may not ease sceptics’ concerns. The court’s backlog, while a legitimate issue, is being seen by some as a smokescreen for more insidious political motives. Some legal experts have also argued that the apex court’s backlog is partly due to its focus on high-profile constitutional cases, many of which involve political disputes. A separate Constitutional Court might not be the panacea it is being touted as if the basic issue of judicial inefficiency is not addressed.

Perhaps the most contentious part of the constitutional package show is the rumoured extension of tenure for judges -- the increase in the retirement age of the superior judiciary. While proponents of the package have implied that this is part of some broader financial reform to reduce pension burdens, it seems the proposed extension only applies to judges, not to the broader bureaucracy. Does that then defeat the argument for increasing the retirement age, adding to the criticism by the opposition that this is more about political expediency than fiscal responsibility?

Then there’s the proposed change to the appointment of the chief justice of Pakistan (CJP). Apparently, under the constitutional package, the new process for appointing the CJP will be by a five-member panel of Supreme Court judges, with the final decision resting in the hands of the government. This is a sharp departure from the current process -- under which the Judicial Commission of Pakistan appoints judges of the Supreme Court, high courts and the Federal Shariat Court. If the newly proposed ‘panel’ includes members from both the government and opposition, would that not mean the judiciary could become subject to the same political bargaining that has hampered other key appointments in the past -- thereby compromising the independence of the judiciary?

According to reports, there is also a proposal to merge the Judicial Commission and the Parliamentary Committee for the appointment of judges, which could also increase political influence over judicial appointments and weaken the system of checks and balances. The proposal for the inter-provincial transfer of high court judges could also be contested as it raises questions about the autonomy of high courts. As more details are set to emerge today, the larger question remains: will these reforms lead to a more effective judiciary, or will they erode its independence?