The 26th Amendment in judicial focus: Part - III

Rule of law dictates that citizens and their representatives participate in the legislative process with an open and timely access to the draft and without any violation of their democratic and fundamental rights.

Having said this, it is fair to take into account the aforementioned context in which the 26th Amendment was necessary and – despite its demerits – it is in the opinion of this writer an appropriate and timely amendment. After the 26th Amendment came into force, the new CJP, JusticeYahya Afridi assumed office after his selection by the parliamentary committee.

The 26th Amendment could have been better but even in its present shape it is a right step forward for the supremacy of parliament as the highest legislative body. Per the 18th Amendment, the Judicial Commission of Pakistan (JCP) nominated judges for the Supreme Court and high courts for appointment. But with the 19th Amendment in place, the Judicial Commission had a majority of judges who could outvote others. That created an imbalance in favour of the judges who mostly had no love lost for elected representatives.

The 26th Amendment changed the composition of the Commission by including two members of the National Assembly, two members of the Senate and one woman or non-Muslim member that the speaker of the National Assembly would nominate. This is likely to ensure parliamentary supremacy in judicial appointments while the presence of federal law minister and the attorney general of Pakistan and a representative of the bar would continue to augment a representative nature of the Commission. Some quarters have raised fears that the inclusion of that many parliamentarians could enhance political influence, which to this writer sounds an unfair apprehension.

This amendment reduced the Judicial Commission of Pakistan’s judicial members to a minority and that is likely to result in a better mechanism than before. After the 26th Amendment, for the appointment of the Supreme Court judges only five out of the 13 members of the Commission will be judges: the chief justice, the most senior judge of the constitutional bench, and the three most senior judges of the Supreme Court. That means now the judges will not have the final say in such appointments that the 19th Amendment had to grant per force under the direction of the Supreme Court.

With the introduction of Practice and Procedures Ordinance in September 2024, the coalition government tried to introduce some balance in the formation of benches. It gave the chief justice authority to nominate one judge of his choice in the committee that was responsible for setting up new benches. Another positive step in the 26th Amendment is regarding the administrative powers of the Judicial Commission of Pakistan.

Now the Commission has the power to determine and nominate constitutional benches within the Supreme Court and high courts. With exclusive jurisdiction over constitutional matters and enforcement of fundamental rights, these benches are likely to play a significant role provided they uphold people’s democratic aspirations and defend fundamental and human rights. If the new benches fail to defend democracy, uphold the constitution without misinterpreting it, and protect human rights, they will be a welcome addition to the system. The fear that these benches will not be impartial and independent is perhaps unfounded as even without these benches the country reeled for decades under a judiciary that was neither impartial nor independent.

There is a possibility that the constitutional benches within the Supreme and high courts might misinterpret the constitution, but such fear was always there even without separate constitutional benches. Opposing these benches on such assumptions will not solve any problems. One can only hope that the Commission nominates rightful benches that serve democracy rather than a political party or a dictator. The 26th Amendment has also changed the procedure for the appointment of the chief justice of Pakistan. Prior to this amendment, the most senior judge of the Supreme Court became the CJP as the executive or even the parliament had no say in this appointment.

After the 26th Amendment, a ‘special parliamentary committee’ came into being – comprising eight members of the National Assembly and four members of the Senate. This committee assumed power to nominate the CJP from among the three most senior Supreme Court judges. The amendment also provides that the committee meetings shall take place in camera. The amendment also stipulates that the Supreme Judicial Council may recommend judges of the Supreme Court and high courts for removal if it finds them “inefficient in the performance of the duties” of their office.

Here some experts point out that ideally there should have been criteria established by the amendment such as incapacity or misconduct that previously provided the ground for removal of judges. Being ‘inefficient’ is too broad a term and may lead to the removal of a judge who is not in the good books of the establishment or the incumbent government. A fair and public hearing by a competent and impartial tribunal established by law is a right that any judge accused of being ‘inefficient’ must have.

In the past we have seen that Justice Shaukat Aziz Siddiqui of the Islamabad High Court became a target of an unfair accusation and had to lose his post. Later he won his case and regained some of his lost prestige but by then it was a bit too late. The 26th Amendment also removed the controversial prerogative of suo-motu action by the Supreme Court as there were many instances in which this prerogative became a cause of concern for the executive and the parliament itself. This amendment has placed suo-motu powers in the hands of a judicial committee under the Practice and Procedure Act.

Under this amendment, provincial advocate generals and counsels will be able to participate in legal discussion in their respective provincial assemblies. Another important feature of the amendment is the empowerment of the CJP to ‘review’ the performance of the Federal Shariat Court and High Court judges. With this amendment, the tenure of the CJP has been capped to three-years; it has also limited the ability of courts to question the recommendations from the cabinet to the president or prime minister. This has increased parliamentary oversight. Another provision of the amendment is the introduction of Article 9A declaring that ‘every person shall be entitled to a clean, healthy and sustainable environment’ as a fundamental right.

Though the 26th amendment is controversial, there has hardly been any other amendment that was completely free of controversy. Though the amendment could have refrained from certain clauses, it is a step in the right direction. There has to be some balance of power in the three organs of the state.

Ultimately it is the legislature that has suffered a lot at the hands of the judiciary and even by some departments of the executive itself. Though now the most senior judge has lost the privilege to become the next chief justice automatically and without scrutiny, the broader pool of three judges is likely to produce better results. However, there is no such guarantee.

In the final analysis, the 26th Amendment is a good amendment – not an ideal one. But then, there has hardly been an ideal amendment in a constitution that itself is not an ideal constitution.

Concluded

The writer holds a PhD from the University of Birmingham, UK. He tweets/posts @NaazirMahmood and can be reached at:

mnazir1964@yahoo.co.uk