CONSTITUTIONAL office holders, including superior court judges and legislators, swear an oath when assuming office. The oath requires them to act in accordance with the Constitution. Does this mean they are bound to act in accordance with, and uphold, any amendments made to the Constitution?

The 1973 Constitution provides by its express terms that it can be amended. For a constitutional amendment, the relevant bill must be passed by two-thirds of the total membership of each House. Thereafter, the relevant bill is presented to the president for assent. Following presidential assent, the bill becomes law and the Constitution stands amended. If this process is not followed, the amendment is procedurally invalid.

For procedural validity, there are three requirements. First, there is the numerical threshold required in each House. Second, the vote must be of individuals who qualify as ‘members’ of the relevant House. If the required two-thirds majority is contingent on votes of members whose election is subject to dispute, then the amendment is subject to the outcome of the dispute. If, ultimately, it is determined that the relevant individual was not lawfully elected, then the amendment is invalid as it would not have been passed by the requisite majority of members. Third, if the vote has been procured by duress or corruption, the vote is invalid. If established that the required majority was achieved through such unlawful means, the amendment would not have received the requisite support.

Such formulations should be uncontroversial. Constitutional amendments cannot be based on votes of individuals who have not won the election and therefore are not lawful members. Nor can they be based on votes that have been unlawfully procured.

Apart from procedural impropriety, a constitutional amendment can also be challenged on substantive grounds. This principle is set out in the case where the 21st Amendment was considered by the full court of the Supreme Court (SC). The plurality of judges held that there is an implied limitation on the powers of parliament to amend the Constitution. Although parliament can amend, it cannot abrogate or substantively alter the salient features of the Constitution. These so-called salient features have been identified as including democracy, parliamentary form of government, and independence of the judiciary.

The latest draft of the bill providing for the 26th Amendment contains three provisions which undermine judicial independence.

The minority judgments in this case were troubled with the SC assuming such power. Justice Saqib Nisar, as he then was, stated that allowing the courts to interfere with constitutional amendments would be tantamount to, “judicial aggrandisement of power at the expense of the elected representatives of the people”.

This view can be contrasted with the view taken by the current chief justice of Pakistan (he was Justice Isa at the time) in the same case. He held that the SC has the power and jurisdiction to examine an amendment made to the Constitution. His view was based on the premise that after the promulgation of the 1973 Constitution, subsequent parliamentarians do not have the same powers as those enjoyed by the members of the first assembly. They cannot amend the Constitution in a manner that contravenes the Preamble and, in particular, cannot take away or abridge any fundamental rights of the people.

Judges, like all of us, evolve. Those who initially were more inclined to restraint become activists. Activists develop restraint. The current state of the law as interpreted by the SC is that the courts can judicially review constitutional amendments duly passed by parliament and strike them down if they substantively interfere with the judiciary’s independence.

The latest draft of the bill providing for the 26th Amendment contains three provisions which undermine judicial independence. First, it is contemplated that the chief justice will be selected from the three senior most judges. This selection is to be done by a parliamentary committee with a government majority. Given this provision, the top three judges may be more concerned about pleasing the government rather than focused on their duty. This conflict of interest in cases where the government is a party would have a material impact on the independent administration of justice. There would inevitably be speculation regarding the motive behind decisions rendered by these judges as the date for selection of the new chief justice by the government approaches.

Second, the amendments contemplate constitutional benches within the SC for constitutional matters. These benches will comprise such judges for such term as may be determined by the Judicial Commission from time to time. Although the JC has the five senior-most serving SC judges as members, one-third of the total membership comes from the government. Giving a litigant (like the government) the right to have a say in the selection of judges to hear a case “from time to time” undermines judicial independence and due process.

The government can, through the JC, seek to punish or exclude judges who have taken decisions against them or change the composition of constitutional benches to suit its partisan interests. There may be a legitimate role for the government or parliament in judicial appointments. They cannot be allowed to decide which judges hear cases in which they are a party.

Third, the amendments contemplate an annual performance evaluation by the JC of high court judges. The government should have no role in evaluating the performance of judges. This discourages independent decision-making.

An independent judiciary is a core value mandated by our Constitution. The state may feel, with some justification, that judicial activism has undermined progress. The solution does not lie in compromising judicial independence. The undeclared aim of some of these amendments is to control the judges. Those who can be controlled are unfit to be judges. Historically, such individuals ultimately haunt their creators. To progress, we must learn from our past and stop repeating it.

The writer is an advocate of the Supreme Court.

Published in Dawn, October 21st, 2024