How does the 26th Amendment help?

There is one easy way to check the level of democracy in a country. The more a state suppresses dissent, the more insecure it is. There is another one: the closer the collapse of an empire, the crazier its laws.

Some of us may have experienced General Zia’s martial law in the 80s; it was a dark period in our history. Processions and meetings were banned and punishable with lashes. However, nobody disappeared the way it is happening these days. People were arrested but their families could trace them in a few hours, unlike nowadays where the arrestees vanish for weeks, months, years, and sometimes decades.

On Oct 21, the two houses of parliament passed the 26th Constitutional Amendment which was not possible without some of the PTI MNAs voting for it; these people were presumably missing prior to doing so. The government was in a hurry to get the bill passed; it is believed that it was unwilling to appoint Justice Mansoor Ali Shah as the next chief justice of the Supreme Court.

Under Article 175-A of the constitution, the judges of the superior courts were appointed by the Judicial Commission of Pakistan. The 26th Amendment replaced this article with a new one which constitutes a 13-member commission consisting of five Supreme Court judges, the law minister, the attorney general, an advocate, two members of the Senate and two from the National Assembly, and a woman or a non-Muslim.

However, the chief justice is not to be appointed by the above commission but by a 12-member Special Committee consisting of eight MNAs and four senators. This provision implies that judges, whether members of any commission or committee or otherwise, will have no say in appointing the chief justice of the Supreme Court; 12 members of parliament will have this prerogative. The membership of this committee will be based on proportional representation based on their parties’ strength in parliament.

In other words, the ruling party will have a chief justice of its choice, from the three most senior judges of the Supreme Court. This may not have anything to do with merit and may be exclusively based on the political inclinations of the appointee. The amendment has also fixed a term of three years for the chief justice.

The Judicial Commission shall also undertake an annual performance evaluation of high court judges. If the evaluation is found to be unsatisfactory, it can send its report to the Supreme Judicial Council. This means that high court judges will constantly be on tenterhooks as their survival will depend on their annual appraisal.

Separately, suo-motu power under the constitution’s Article 184(3) has been slightly limited by linking it to the filing of an application.

The 26th Amendment has also given the Supreme Court the power to transfer any proceeding pending in a high court to itself or any other high court if it considers it in the interest of justice.

A lot is being said about the formation of constitutional benches in the Supreme Court which has been made possible through the insertion of Article 191-A. This probably was originally envisaged with the idea in mind that the outgoing chief justice can be moved to head this constitutional court which now is being called a bench. However, due to the opposition, the idea has been diluted. The number of judges in this bench and the judges themselves shall be determined by the Judicial Commission; the bench will comprise an equal number of judges from each province.

Many major powers of the Supreme Court have been transferred to these constitutional benches, such as the original jurisdiction of the Supreme Court under Article 184; and the appellate jurisdiction of the court under Article 185(3) where the constitutionality of any law or a substantial question of law as to constitutional interpretation or advisory jurisdiction of the court under Article 186. Such benches have also been formed at the high court level.

The age for becoming a judge of the high court has been lowered from 45 years to 40 years.

During the debate in the National Assembly, which was undertaken in undue haste, it was repeatedly mentioned that the performance of our judiciary leaves a lot to be desired. Its international low ranking was mocked. Nobody bothered to point out that the ranking of the legislature or the executive may not be any better. And what makes the rulers think that adding dozens of new judges, drawing millions of rupees of salaries and benefits, will help add to an improvement? Some of the finest courts in the world are based in England and the United States: The former’s Supreme Court has 12 while the latter has nine judges.

The number is not going to make any difference; integrity, honesty, uprightness, and intellectual capacity will make a difference. A British chief justice once said that a judge is not supposed to know anything about the facts of life until they have been presented in evidence and explained to him at least three times. Most of our superior judiciary is as plucked into politics as the legislators since our independence.

The writer is an advocate of the Supreme Court. He can be reached at: aj@jillani.org