26th Amendment and judicial balance

The British Empire spawned the three federations of Canada, Australia and India almost under similar laws enacted in 1867, 1901 and 1935 respectively. The Indian federation was partitioned in 1947 and the Government of India Act 1935 remained our constitution till 1956.

Initially in all these jurisdictions, judges were appointed and removed by the executive. Later, the power of appointment was retained by the government through a consultative process and the power of removal was transferred to parliament. In Canada, however, the prime minister appoints judges through selection by his advisory board. In all these countries, the power of removal of superior court judges rests with parliament. Pakistan’s 1956 constitution also contained a similar provision. Pakistan deviated from this norm in 1962 when the power to remove judges was conferred upon the Supreme Judicial Council.

Pakistan has been beset with judicial crises since 1954 when the chief justice of the Federal Court overturned the Sindh Chief (High) Court Judgement which held against the dissolution of the Constituent Assembly.

In cahoots with each other, Iskander Mirza, General Ayub and governor-general Ghulam Muhammad imposed the One-Unit system on the federation of Pakistan, in 1955. In stark violation of Mountbatten’s Partition Plan of June 3, 1947 which envisaged five instead of two provinces, overnight a federation became ‘unitary’. The rest, as they say, is history.

The judiciary participated in these fiascos by legitimising the imposition of martial law in 1958 (vide the famous Dosso case). It took another 15 years, and the breakup of Pakistan to lay the foundation of a genuine federation with a consensus constitution of 1973, led by then-PM Zulfikar Ali Bhutto.

On July 5, 1977 General Zia deposed an elected prime minister and buried the constitution. The same Supreme Court that legitimised Zia’s coup in the Begum Nusrat Bhutto case also legitimised General Musharraf’s coup in the Zafarullah case.

Let us fast forward to 1997. While donning the garb of ‘independence’, the judiciary usurped the powers of appointment of judges (whilst adjudicating on the Al-Jehad Trust case). It is important to recall that before 1997 the powers of appointment of judges were not vested in the judiciary.

Just two years later in 1999, most of the judges (including former CJP Iftikhar Chaudhry) took oath of office under Musharraf’s Provisional Constitutional Order (PCO).

In order to halt these self-serving shenanigans of the superior judiciary, former prime ministers Shaheed Benazir Bhutto and Nawaz Sharif signed the Charter of Democracy in 2006. The CoD promised and envisaged judicial reforms to end this ‘charade’ of justice.

Since 1997 and post the 18th Amendment, the power of judges to appoint/ remove themselves has created havoc with the political system and the fundamental rights of citizens. It has intoxicated the superior judiciary with a sense of unbridled power. It must never be forgotten that the superior judiciary validated martial laws, had prime ministers removed and even sent one to the gallows! Suo-motu powers (usually vested in archaic monarchies to supposedly ‘protect’ fundamental rights) were brazenly deployed to interfere in the legislative and executive branches of government.

Federal and provincial governments are responsible to parliament and provincial assemblies respectively. By invoking jurisdiction of high courts under Article 199, the Supreme Court made both federal and provincial governments responsible to the Supreme Court. During the PTI’s tenure, the Supreme Court called prime ministers, chief ministers and other ministers before it in violation of Article 248 of the constitution under which these functionaries are not answerable to any court in Pakistan in exercise of their official functions. This destroyed the basic federal and parliamentary structure of the constitution.

The most recent push came on a presidential reference regarding the interpretation of Article 63A on the reserved seats case. This required no interpretation. The Supreme Court instead rewrote the constitution by declaring that the vote of a parliamentarian against instructions of the party head shall not be counted. It also allotted the reserved seats to the PTI against the express provision of Article 51 of the constitution.

The reforms package of the 26th Amendment divides the constitutional and appellate jurisdictions of the Supreme Court. The Judicial Commission has been given the power of nominating judges for the constitutional benches both in the Supreme Court and in the high courts. The commission is also invested with powers of evaluating and assessing high court judges.

The 26th Amendment has ordained that the benches shall be constituted by the three senior-most judges from amongst the nominated judges. Suo-motu powers, though not provided in articles 199 or 184(3) have been done away with as per prevalent international practice.

Now, the constitutional bench or benches in the Supreme Court will have equal representation of all four provinces and function under Article 184(1)(2) of the Constitution, as courts of original jurisdiction.

A 12-member Special Parliamentary Committee shall select a chief justice of the Supreme Court from amongst the three senior-most judges of the Supreme Court. Thus, Pakistan has adopted a selection model of appointment of Judges instead of the consultative model prevalent in Australia or India. However, the power to remove judges has been retained with the Supreme Judicial Council instead of transferring it to parliament (as prevalent in Australia, India, Canada, UK, USA and South Africa who have similar judicial systems).

This small change in the selection of judges has enraged a section of lawyers who are uncomfortable with equal representation of provinces in the Supreme Court. They have perhaps not paused to think that the original jurisdiction of the Supreme Court under Article 184(1)(2) is to adjudicate disputes between provinces, and between any province and the federal government. To uphold the spirit of the federation requires equal representation.

A province like Balochistan, with so many grievances against the federal government, has never brought any dispute to the Supreme Court. Why? Balochistan fears that a majority of judges from Lahore may decide in favour of the federal government. We must realise that the insurgencies and disaffections expressed in various forms in the provinces has been because of a fundamental disconnect in the federations highest dispute resolution forum – the Supreme Court.

Before the 26th Amendment there was no litigation under the Supreme Court’s original jurisdiction. Adjudicating on disputes between two or more federal and provincial governments from 1973 has not been the priority of the Supreme Court since the 1973 constitution was promulgated.

Restoring the powers of parliament and the executive in the appointment of judges, though long overdue (since 1997), has bedeviled a section of lawyers who are dubbing it as a ‘pro-military’ move. This is being seen by them in the context of the May 9 incidents.

The PTI participated in a Special Parliamentary Committee of Parliament which approved the draft of the 26th Amendment. They also remained part of the negotiations and were loud and vocal against the provision of a Federal Constitutional Court as envisaged in the CoD. PPP Chairman Bilawal Bhutto Zardari vigorously lobbied for this and showed large-heartedness in accepting the provision of constitutional benches instead, on the insistence of PTI members.

Unfortunately on the instructions of its incarcerated leader (who has been dependent on the appointment of certain personalities to catapult him to power), the PTI once again did a massive U-Turn and chose to boycott parliament and not vote on the 26th Amendment.

The writer has served as advocate general of Sindh. He tweets/posts @zamirghumro