Law students and law graduates in Pakistan are reporting for JURIST on events in that country impacting its legal system. Abu Bakar Khan is a recent law graduate of the University Law College, University of the Punjab, and is currently practicing in the courts of Pakistan.
As these lines are being written, the parliamentary committee tasked with selecting the next Chief Justice of Pakistan has convened. However, this piece is not about that. Rather, it centers on the newly-approved 26th Constitutional Amendment to the 1973 Constitution of Pakistan, which created this committee earlier on Monday. Under the amended clause 3 of the Constitution’s Article 175A, the Chief Justice of Pakistan (CJP) will no longer be the “most senior judge of the Supreme Court”. Instead, the Special Parliamentary Committee (SPC) will recommend one of the three most senior Supreme Court judges for the position, and will submit the nominee’s name to the prime minister, who will forward it to the president for the appointment of the CJP. The parliamentary parties will have proportional representation on the committee, based on their strength in Parliament. That being said, the government will always command the majority on the parliamentary committee, giving it a dominant say in appointment of the CJP. This shifts substantial powers to the parliament, allowing it to play a key role in picking the top judge. The 26th Constitutional Amendment does not specify any criteria for the SPC when nominating the Chief Justice, while it mandates that its meetings be conducted in camera.
Another significant amendment has been made to Article 184, which pertains to the Supreme Court’s original jurisdiction, removing its suo motu powers. The court is now restricted from issuing orders or directions on its own initiative unless within the scope of application filed under this clause. A similar restriction has been imposed on high courts regarding their writ jurisdiction under Article 199 of the Constitution. A new clause, 1A, has been added to Article 199, removing suo motu powers of high courts. The clause now reads, “The high court shall not make an order or give direction or make a declaration on its own or in the nature of suo motu exercise of jurisdiction beyond the contents of any application filed”.
The 26th Amendment raises a pressing question: who holds the true authority in the new Supreme Court — the Chief Justice of Pakistan or the Presiding Judge of the new Constitutional Bench? With the insertion of Article 191A, the constitutional bench will exclusively handle constitutional matters, which are often the focus of television shows and newspapers. This amendment represents a clear step back from the initial effort to establish a completely separate apex court, leaving the Supreme Court supreme in name only. Interestingly, judges for this bench will now be nominated by the Judicial Commission, not by the recently formed three-judge committee established under last month’s ordinance. The most senior among them will serve as the Presiding Judge of the Constitutional Bench, and all significant powers, including suo motu and advisory powers, will be vested in this bench. Some argue that it may become a “court within a court.”
An amendment to Article 215 enables the Chief Election Commissioner (CEC) and a member of the Election Commission of Pakistan (ECP) to remain in office until their successor assumes the position, regardless of the expiration of their term, which was previously five years. This means the CEC could potentially remain in office for an extended period, if no agreement is reached between the government and opposition on appointing a new CEC. This effectively allows the government to grant unlimited extensions by not reaching an agreement with the opposition on the appointment of a new CEC.
The amendments to the appointment process for Supreme Court judges involve changes to the Judicial Commission of Pakistan (JCP) in clause 2 of Article 175A. The commission will now include a “presiding judge” of the constitutional bench alongside the Chief Justice (who remains the chair). The number of senior Supreme Court judges has been reduced from four to three. The commission will also feature the law minister, the attorney general, and the senior advocate nominated by the Pakistan Bar Council. Additionally, two members from the Senate, two from the National Assembly (one from the treasury and one from the opposition) and a woman or non-Muslim technocrat nominated by the Speaker of the National Assembly, will also participate in the selection process.
The amendments to Article 175A introduce major changes to the process of appointing high court judges, particularly by forming constitutional benches. Under revised Clause 5(ii), the “most senior judge of that high court” has been replaced by the “head of Constitutional Benches” as a member of the Judicial Commission for these appointments. New clauses in Article 175A introduce significant changes. The Judicial Commission will conduct annual performance evaluations of high court judges (Clause 18), and if a judge’s performance is deemed unsatisfactory after a period of improvement, the matter will be referred to the Supreme Judicial Council (Clause 19). Additionally, Article 48(4) now prevents courts or authorities from questioning the advice given to the president by the cabinet or prime minister.
These sweeping amendments have dominated our national headlines, op-eds, talk shows, and social media. It cannot be overlooked that force, including abductions, kidnapping, disappearances, and coercion, played a significant role in securing the parliamentary majority required to pass these amendments. Pakistan’s largest political party, Pakistan Tehreek-e-Insaf (PTI), abstained from the voting process, asserting that the current government lacks legitimacy and operates as a puppet for the powers that be. As we stand at a crossroads, only time will reveal the full consequences of these hastily passed amendments. As the saying goes, “the proof of the pudding is in the eating.” Soon, we will see — when the strings are pulled by unseen hands and when the hammer inevitably falls on their own foot.
