A draft of the 26th Constitution Amendment Bill is in circulation. If this is indeed what is being contemplated by the government, I am reminded of the words of a doctor friend — sometimes there are patients so insistent on ignoring medical advice, you want to give them spades to dig their own graves.

Nonetheless, this article is written in the forlorn hope there are still a handful of undecided parliamentarians (and only eight or 10 are needed) who possess the wisdom to understand the implications of this bill, a sense of duty towards their oath as a parliamentarian and the courage needed to resist this national suicide pact.

At the very least, all parliamentarians (whichever party they belong to) must consider whether they should rubber-stamp a change to the fundamental structure of our constitutional system without even being afforded an opportunity to read, consider or debate those changes.

Solution to what?

For months, there were rumours of a bill aimed at extending the tenure of the chief justice of Pakistan, the retirement age of all judges or even increasing the number of Supreme Court (SC) judges. That would have been bad enough, and for transparently political objectives. But this bill, also known as a ‘Constitutional Package’ is far, far worse.

In a nutshell, it:

• abolishes the jurisdiction of the apex court in relation to constitutional petitions.
• All such cases shall go to a new constitutional court headed by a chief justice appointed by the president on the sole advice of the prime minister.
• The president shall also hand-pick the remaining judges of the constitutional court after consulting with the newly-appointed chief justice.
• Besides, no court (old or new) shall have the power to examine the actions of officials acting under “national security” laws.
• And (naughty) high court judges or (sensitive) cases can be transferred, without consent, from one high court to another.

The argument put forth by our ruling parties is that our superior courts have become too politically partisan, and hence, reform is necessary. Right. So in order to depoliticise courts, the solution is to ensure constitutional cases are only heard by judges appointed by the ruling political parties?

The other argument is that our judicial system is overburdened and litigants face long delays. Right. So the solution is to add one more layer to the adjudicatory hierarchy so that after litigants spend decades exhausting civil and criminal law remedies up to the apex court, they can take the dispute on constitutional grounds to the constitutional court?

As for government spokespersons fond of recounting instances of capitulation by the judiciary in the face of military might, their solution for enhancing judicial resolve is to take away the judicial power to examine actions taken under “national security” laws and introduce legislation leaving judges more vulnerable to executive pressure?

Taming the judiciary 101

But let’s take a closer look at the more important provisions of the bill. The proposed amendments to Article 175-A of the Constitution — which deals with the appointment of judges to the high courts, apex court and the federal shariat court — effectively merge the judicial commission and parliamentary committee that presently appoint judges. On its own, that could possibly be defended. There was valid criticism that the 19th Constitutional Amendment and subsequent SC judgments had effectively neutered the role of the parliamentary committee.

But then, the bill goes on to say that the first chief justice of the new constitutional court shall be appointed by the president on the sole advice of the prime minister. Similarly, the initial appointments of judges to the new court shall be made by the president (presumably on the advice of the prime minister) in consultation with the first chief justice.

So, for all these initial appointments to the constitutional court, there is no role for the merged judicial commission at all. The troika shall decide. Crucially, there is no requirement that the initial chief justice or judges of the constitutional court be appointed from existing SC judges. They could be retired SC judges or even advocates of the SC with 15 years of practice.

The merged judicial commission will only play a role in subsequent appointments to the constitutional court — after the first constitutional court is duly filled. Conveniently, this merged commission will have 13 members — including six of the incumbent (hand-picked) appointees to the constitutional court, the federal law minister and attorney-general and two parliamentarians from the treasury benches (making a comfortable majority of 10).

To further safeguard against incipient sparks of judicial rebellion, the bill provides that, even in future, the chief justice of the constitutional court shall neither be appointed by seniority nor by judicial commission. He shall be appointed from among the three senior-most judges of the constitutional court on the recommendation of a National Assembly committee (with proportionate representation from all parties). In other words, the ruling party shall always have a majority on that committee.

A similar procedure is prescribed for the appointment of future chief justices of the SC. Thankfully, the bill does not demand the three senior-most judges personally perform auditions for the edification of the ruling parties.

Meanwhile, the retirement age for constitutional court judges shall be 68 (or a fixed tenure of three years if the fresh appointees are already judges of the SC). This further incentivises SC judges to play ball with the government if they wish to prolong their careers.

Abolishing the Supreme Court

Now that we understand how this new constitutional court shall be formed and its institutional subjugation to the executive, it is time to look at what it will do.

First, the bill immediately transfers the entire original jurisdiction of the SC — disputes between two governments or any direct petition, or suo motu proceedings, involving enforcement of fundamental rights — to the new court. Notably, the bill specifically bars even this new court (as well as the old courts) from hearing petitions relating to a person “performing functions under any law relating to national security”.

Secondly, and even more importantly, the bill provides that the constitutional court shall have exclusive jurisdiction to hear appeals against all high court orders and judgments passed under Article 199 of the Constitution — the writ jurisdiction.

Political petitions are a tiny minority of writ petitions before the high courts. The vast majority of writ petitions involve routine challenges to wrong orders passed by lower courts and the actions and inactions of governmental authorities such as revenue officers, town planning authorities, tax collectors, promotion boards, the Securities and Exchange Commission of Pakistan, the State Bank of Pakistan, Nadra, jail authorities, police and the like. All of these will now end up in appeal before the constitutional court.

So what will the SC do? For one, it will hear appeals against the (relatively few) matters that are decided by high courts in their statutory appellate or revisional jurisdictions. Even there, if any substantial point of constitutional law is involved, the case shall stand transferred to the constitutional court. Moreover, if there is a question as to whether a case falls within the jurisdiction of the SC or constitutional court, the latter shall decide.

For all practical purposes, therefore, the bill abolishes the Supreme Court of Pakistan. It merely does the courtesy of not subjecting judges to the indignity of Article 209 proceedings — pertaining to the conduct of judges — and leaves them free to twiddle their thumbs at state expense.

A more fundamental attack on the basic structure of our Constitution and the trichotomy of powers enshrined therein is hard to imagine. The Parliament cannot take away the judicial power to interpret the Constitution from the apex court and vest it in, what is effectively, a body subordinate to the government/ legislature.

No lessons learnt

But there is more. The proposed amendment to Article 186-A of the Constitution — which deals with SC’s power to transfer cases from one high court to another — allows the constitutional court (if it disapproves of the manner in which a high court is proceeding with a writ petition) to transfer it to any other high court or to itself. This undermines the autonomy of provincial high courts.

Students of constitutional history will recall that General Musharraf sought to invest the SC with an identical power during the emergency in the Dogar era but was eventually thwarted due to the resistance of the very same political parties. They will also note the proposed amendment to Article 200, allowing a (recalcitrant) high court judge to be transferred to any other high court even without his consent, is a fresh resurrection of a clause specifically omitted by the same parties through the 18th Amendment. Ironic.

Going further, the proposed amendment to Article 190 removes the obligation of all executive and judicial authorities in Pakistan to act in aid of the apex court and replaces it with the obligation to act in aid of the constitutional court.

Lastly, in relation to the judiciary, the bill seeks to amend Article 239 — which deals with the procedure of constitutional amendments — by providing that if any court entertains a challenge to a constitutional amendment, its judgment, order or declaration shall be “of no legal effect and void”.

For context, the SC in the Rawalpindi Bar’s challenge to military courts in 2015, had held that although the judiciary would not ordinarily entertain challenges to constitutional amendments, they could do so if the amendments moved beyond the purely amendatory power and sought to entirely efface essential features of the Constitution. It is this power of judicial review that prevents, for example, a two-thirds majority of Parliament declaring that all members of the present house shall hold office for life and there shall be no elections until they all expire. The bill seeks to remove this institutional check and balance implicit in our constitutional scheme.

As a bonus, in non-judiciary-related amendments possibly pointing to the actual origins of this bill, the proposed amendment to Article 243 — which deals with the command of armed forces — provides that all present laws relating to the procedure of appointments, reappointments, extensions, service limits and retirement or removal of the services chiefs (recently introduced in 2020 for the benefit of General Bajwa) shall, henceforth, possess constitutional force and require a constitutional amendment to change.

In other unrelated matters, the proposed amendment to the Fourth Schedule of the Constitution permits Parliament to actually grant taxation powers to cantonment boards and authorities. Neat.

One could understand such an attack on judicial independence under a military regime. But what has happened to the common sense and survival instincts of politicians?

During the furore about the Practice & Procedure Bill, I (unsuccessfully) tried explaining to friends in the PTI that while they may be unhappy with the clipping of the CJP’s powers to constitute benches during Justice Bandial’s tenure, it would be their lifeline in years to come.

Predictably, it is judges (like Justices Mansoor Ali Shah, Athar Minallah or Babar Sattar) who were most frequently the subject of the PTI’s ire when the party was in power. It is these same judges who have provided them some succour during difficult times.

Luckily, the PTI was unsuccessful in its various attempts to subjugate the judiciary. One hopes, not just for the future of the nation but even for members of our hapless ruling party, that they remain similarly unsuccessful in this latest attempt at national suicide.

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