“I consider the difference between a system founded on the legislature only, and one founded on the people, to be the true difference between a league or treaty and a Constitution” — Thomas Jefferson at the Constitutional Convention

IN his groundbreaking work on constitutional theory, acclaimed constitutional scholar and former professor at Harvard, Mark Tushnet, underscores the perils concomitant with ‘constitutional hardball’. Constitutional hardball, he argues, involves “legislative and executive initiatives — that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing constitutional understandings”.

Attempts to compel parliament to surreptitiously rubber-stamp the 26th Constitutional Amendment have inevitably engendered concerns about the government’s intentions. Is the government merely endeavouring to make the judiciary more accountable, or does the amendment betray more insidious designs?

Text of the amendment: The amendment strips the Supreme Court of its constitutional jurisdiction, transferring such cases to a ‘constitutional court’. Also, while changing the manner in which judges of the superior courts are appointed by, among other things, merging the Judicial Commission and the parliamentary committee on judges’ appointment, the amendment nonetheless dispenses with such procedure while appointing the constitutional court’s first judges.

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Section 13 of the amendment provides that the first chief justice of the Constitutional Court shall be appointed by the president on the prime minister’s advice.

The chief justice appointed on the prime minister’s advice and the president shall then appoint the remaining judges of the constitutional court. These judges and the government’s representatives shall also form the majority on the Judicial Commission, thus appointing judges to superior courts across the country.

Does the amendment betray more insidious designs?

Moreover, given the amendments to Article 209 of the Constitution, these judges, handpicked by the executive, shall also be a part of the Supreme Judicial Council and recommend the removal of judges on grounds of incapacity, inefficiency, or misconduct. If these amendments fail to remind judges which side of the bread to butter, Article 200 allows the president to simply transfer uncompliant judges to another high court.

Assault on the Constitution or towards a more democratic system? The government purports that the Supreme Court’s focus on adjudicating constitutional disputes delays the resolution of civil and criminal disputes, thus obstructing litigants’ access to justice.

Additionally, it claims that the Supreme Court’s activism and frequent intervention in the realm of policy obviates the government’s ability to shape the polity. Policy matters, they argue, ought to be decided by the public’s elected representatives and not by 17 unelected and sequestered individuals in robes. Such claims, however, fail to withstand even minimal scrutiny.

Firstly, a study published during chief justice Iftikhar Chaudhry’s tenure highlighted that constitutional cases instituted at the Supreme Court constitute one per cent of the total number of cases instituted at the court. Secondly, while these cases, given the stakes involved, get disproportionately more coverage than other cases, only one out of six to seven benches of the apex court hears these cases.

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Moreover, as lawyer Salahuddin Ahmed recently highlighted, the amendment may exacerbate delays in adjudication since it adds “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”.

Delays and pendency mar courts across Pakis­tan. The pipelines of justice are, thus, choked not due to self-aggrandising judges preferring constitutional disputes over the more trivial civil or criminal disputes before them; rather, delays em­­anate from archaic procedures, paucity of competent lawyers and skilled judges, inconsistencies in revenue records, recalcitrance to embrace modern technology, and the underdevelopment of alt­ernate forms of dispute resolution.

Interestingly, while the Arbitration Law Review committee under Justice Mansoor Ali Shah submitted its proposed Arbitration Bill to the law minister in May, parliament is yet to enact the law. The government’s commitment (or lack thereof) to unclog the pipelines of justice is, thus, palpable.

Claims of obviating judicial interference in the realm of policy are similarly misplaced. Writing for these pages nearly half a decade ago, this writer had lamented the dilution of the parliamentary committee through successive judicial decisions. While the merger of the Judicial Commission and parliamentary committee may have been justified, the government disregarding the Judicial Commission in favour of cherry-picking the constitutional court’s judges betrays its desire to subdue independent judges under the garb of reclaiming space for parliament.

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Contemporaneous with claims of parliamentary sovereignty, the amendment surrenders parliament’s ability to amend laws relating to the terms of service chiefs. Laws relating to the terms of service chiefs, it provides, can only be altered through a conditional amendment.

The amendment, thus, ought to be seen for what it really is: an attempt to emasculate the judiciary and marginalise an incoming chief justice, who ruffles the executive’s feathers. While the government has endeavoured to assuage such concerns by claiming that Justice Shah shall be the next chief justice, such assurances are laced with disingenuity given its attempts to relegate the office of the chief justice to the peripheries. The amendment is, thus, less about reclaiming parliament’s powers and more about consolidating power where it has always belonged.

Most egregiously, the government is yet to share the final version of the proposed amendment officially. The Constitution forms the social contract between the citizens and the state. The Preamble to the Constitution too recognises that “it is the will of the people of Pakistan to establish an order”. Nonetheless, the actual custodians of the Constitution, ie, the people of Pakistan, have been completely excluded from the process.

With tensions simmering under the surface, will the amendment be the harbinger of a catastrophic conflagration? The republic may be falling apart.

The writer is a lawyer.

X: MoizBaig26

Published in Dawn, September 21st, 2024