KARACHI: Following weeks of political wrangling, the coalition government on Sunday finally managed to secure parliamentary approval for the 26th Constitutional Amendment Bill.

The bill, dubbed the Constitutional Package, proposes a set of constitutional amendments, including the tenure and appointment of the chief justice of Pakistan (CJP) and the evaluation of judges’ performances.

But what do these amendments mean for the independence of the judiciary in Pakistan. Dawn.com asked lawyers for their two-cents.

Blow to constitutional order

Speaking about the implications of the amendments on the judiciary’s independence, Barrister Asad Rahim did not mince any words.

“The 26th Amendment is the biggest reversal for judicial independence in three decades. Appointments of judges have been handed back to the executive, which — as our history is witness — should have no business in such a selection,” he said.

“The method for handpicking the chief justice of Pakistan, [from] a list of three, will ensure a game of thrones every few years, thus wrecking a system that was until now immune to such intrigue,” he argued.

“Judges that were confirmed as future chief justices as late as yesterday will likely retire before ever making it, in favour of a system that will naturally prefer pliant or partisan candidates.

The same basic problem

For lawyer Abdul Moiz Jaferii, the current draft “is clearly a climb down from the first attempt at steamrolling through an entirely separate apex court and leaving the Supreme Court supreme in name only.”

However, he noted that it still suffers from the same basic problem: the idea of the executive picking a chief justice and a parliamentary committee determining which superior court judge can hear constitutional matters brings “the pillar of the judiciary into a measure of subservience to the legislature and the executive”.

“Where the first amendment draft spoke of the first chief justice to be appointed by the prime minister, the intervention of a parliamentary committee is now to be a continuous process.”

“These constitutional benches and the picking of judges from within the superior courts, if they are deemed worthy, are a separate court in all but name. The designs behind them are little more than an attempt at bringing independent judges to heel,” he said.

Politicising the judiciary

According to lawyer Rida Hosain, the fundamental problem with the previous drafts, and the current one, is “the obvious aim to capture an independent judiciary.”

The CJP is to be appointed from a panel of the three senior most judges by a parliamentary committee. The government commands the majority in the parliamentary committee, and the government will have a majority say in the appointment of the CJP, she explained, adding that the government is a party before the Supreme Court.

“A litigant (such as the government) cannot choose the head of the institution where it will appear as a party.”

Furthermore, she added, “a commission that includes government representatives will ‘evaluate’ the performance of superior court judges. Allowing government representatives to evaluate judicial performance is tantamount to giving the government the right to punish and reward judges.

The government may render an adverse evaluation to target a judge that has given decisions against them.”

“The government has effectively inserted itself into the process of appointment of the CJP; the evaluation of performance of superior court judges; and, the creation of the constitutional bench.

“This is not de-politicising; this is an attempt to exert control and influence over the superior judiciary. An attack on judicial independence is an attack on fundamental rights — a judiciary that is not independent cannot dispense justice without fear or favour. This impacts all citizens,” she stressed.

Emasculating the judiciary

“The proposed Constitutional Amendment betrays the government’s desire to emasculate the judiciary by giving the government’s members a majority on the judicial commission,” said lawyer Mirza Moiz Baig.

“Given that the reconstituted judicial commission will now also determine the composition of the constitutional benches, the Amendment effectively seeks to control which judges will hear cases involving the government.

“Such concerns are further aggravated by the stipulation that the CJP will be selected from a panel of three by a parliamentary committee with proportionate representation.

“The government of the day would, thus, have a majority on not only the judicial commission selecting judges to the superior judiciary but also on the parliamentary committee selecting the CJP.”

Many concerns remain

According to lawyer Basil Nabi Malik, “the amendments are quite diluted when compared to the initial drafts that had been circulating.

“This draft, compared to the earlier ones, is more workable,” he said, adding however, that there still remain certain concerns which require redressing.

“Firstly, the role of the special parliamentary committee shall be controversial, especially its ability to choose a CJP from the top three judges. Secondly, the disconnect of the Constitution benches from the CJP shall cause administrative issues, and shall act as a divide in the unity of the institution.

“There shall arise several questions as to the remaining authority of the CJP, and his ability to martial his justices in times of crisis,” he said.

Published in Dawn, October 21st, 2024