The 26th Constitutional amendment passed by Pakistan Prime Minister Shehbaz Sharif’s government has been challenged in the Supreme Court. A major concern highlighted in the petition before the apex court is that the amendment allows the government to control the appointment of the Chief Justice of Pakistan (CJP). The petitioner has also stated that changes to the Judicial Commission’s structure threaten the judicial independence which is guaranteed under the Constitution, according to The Friday Times.
The petition in the apex court argues that while Parliament can change the Constitution with a two-thirds majority, it cannot interfere in judicial matters. It is another matter whether the government had a legitimate two-thirds majority when it passed the amendment. This question is important as Imran Khan’s Pakistan Tehreek Insaaf (PTI) has been denied dozens of “reserved seats’’ despite a Supreme Court verdict of July this year.
During this verdict, which was delivered by a 8-3 majority, it so happened that Chief Justice Qazi Faez Isa found himself in the minority. Justice Mansoor Ali Shah, who was next in line to be the CJP, was among the eight judges whose verdict won the day. This judgement greatly rattled the Sharif government which then decided to stall Justice Shah from becoming CJP after incumbent retired on October 26. Hence the amendment which has been presented as a part of the judicial reforms the government was planning.
The petitioner claims that the amendment violates the Constitution’s basic principles and disrupts the balance of power among government institutions. The amendment has allowed the government to control who becomes the Chief Justice of Pakistan, and who does not. It was specifically aimed at denying the robes of CJP to Justice Mansoor Ali Shah and the government has succeeded in sidelining him. Till about four days ago, by the start of the week on October 20, the precedent was that the senior-most judge of the Supreme Court became the Chief Justice on the incumbent’s supersession.
After the amendment targeting Justice Shah was passed well past midnight, the government practically got the powers to jettison the principle of seniority. By doing so, the government also got the power to pick and choose the next chief justice. Moving swiftly, the Sharif government has made Justice Yahya Afridi as the next chief justice superseding Justice Munib Akhtar also. By this amendment, two senior-most judges of the Supreme Court have been superseded.
Commenting on 26th Constitutional amendment which made it possible to supersede seniormost judge Justice Mansoor Ali Shah, prominent Pakistani writer Ejaj Haider wrote: The legislation is political, mala fide, and enacted by an illegitimate political dispensation. Mr Haider has clearly dared to declare Sharif government as illegitimate due to the heavily rigged elections conducted in February this year.
This government is trying to get pliant judges, to shield its leaders from judicial scrutiny and, when necessary, to get the judiciary to rubberstamp its agenda. Through the amendment, the seniority rule for the position of the Chief Justice of Pakistan and the composition of the Judicial Commission of Pakistan (JCP), Mr Haider explains.
The new composition of the JCP makes it a political body that now has the power to make bespoke benches to address specific “constitutional” questions that have a direct bearing on the government and its interests. This actually means the government wants judges to tow its line and not scrutinise its actions, he adds.
The legal challenges this amendment will face in different high courts and the apex court highlights ongoing concerns about the separation of powers and the independence of the judiciary in Pakistan. As these cases progress, they could have significant implications for the country’s legal framework.
