Daily Times

Pakistan’s constitutional history is filled with a recurring cycle of the same power struggles. The 1973 Constitution established a parliamentary democracy where a clear separation of powers and provisions to uphold the judiciary’s independence were at its cornerstones.

In its constitutional journey, the judiciary has often been at the centre of a complex struggle between upholding its independence and facing political manoeuvrings. Amendments introduced by both civilian and military regimes altered the balance of power between state organs and curbed the judiciary’s independence. In September 1985, General Zia-ul-Haq passed the 8th amendment, which was aimed at bringing about a balance of power by changing the system of governance from parliamentary to presidential form.

The amendment changed the status of the Prime Minister to the lowest ebb by subordinating him to the President. The President was given the power to nominate High Court and Supreme Court judges as well as chief of armed forces. In April 1997, Nawaz Sharif passed the 13th Amendment Act in the parliament and restored the supremacy of the Prime Minister and the parliament.

Amid the endless vicissitudes of politics, it is a cliché to hear the government promise new beginnings or change.

General Pervez Musharraf introduced the 17th Amendment in 2003 which was seen as a way for sabotaging the independence of judiciary. Following the amendment, the Lawyer’s Movement started which was considered the most pertinent spilling of liberal democratic energy.

In April 2010, the 18th amendment was passed which introduced significant changes in multi-order governance by reaffirming transfer of responsibilities and granting provincial control of local government system. In the utmost haste, the Government of Pakistan passed the controversial 26th Constitutional Amendment in the upper house of parliament.

Containing 27 clauses, the amendment brings major changes to the judicial system by altering the powers of the Supreme Court. According to the amendment, three senior judges of the Supreme Court will appoint a Chief Justice on the recommendation of a Special Parliamentary Committee and have a fixed term of three years.

A new article 9 (A) is inserted which grants rights to every citizen of a healthy and clean environment reflecting global awareness about environmental issues. Article 38 (F) and Article 48 (4) are amended which sets a target for the elimination of Riba (interest) by 2028, fostering a more equitable financial system. Amendment to Article 48 solidifies the role of the President in judicial appointments which cannot be challenged in any court.

After a culmination of months of negotiations, the constitutional package gave legislators more power in appointing the top judge. In a secretive manner, the amendment was passed within 5 hours and was not referred to the committee for review. Key legislative changes were made in November 2024, the government passed six bills amending the existing laws to increase the tenure limits and retirement ages for Pakistan’s three service chiefs.

Service chiefs will now serve five-year terms. Pakistan Army Amendment Act 2024, Pakistan Air Force Amendment Act 2024, and Pakistan Navy Amendment Act 2024. Pakistan’s Constitution has evolved through these amendments, with some amendments being repealed and others remaining in effect. These changes reflect the shifting political landscape, efforts to strengthen judicial independence and attempts to balance power.

Eroding the judiciary’s capacity to function independently, the amendment brings extraordinary political influence over the process of judicial appointments and makes profound institutional changes in the judiciary’s administration. A group of lawyers responded against the much-touted constitutional amendment and filed a petition in the Supreme Court. Amidst intense back-and-forth negotiations, disagreements were tackled and a consensus was developed which transcended partisan divides.

In Pakistan, the rhetoric of progress has been repeated through the years. Amid the endless vicissitudes of politics, it is a cliché to hear the government promise new beginnings or change. Affirming the supremacy of parliament, the Prime Minister said that the amendment is an example of national consensus and solidarity.

PTI leaders considered the amendment an attempt to politicize the judiciary and analogous to suffocating the functions of an independent judiciary. The amendment has brought drastic changes in the country’s judicial setup and sealed the supremacy of parliament over state organs. A significant thrust is on the establishment of a parliamentary committee which will solely tackle the constitutional matters exempting the Supreme Court from basic appellate law.

The sinister side of this amendment would be that it could trigger a new impasse between branches of state and could escalate the confrontation between the government and the legal fraternity. By overly subjecting it to the executive and parliament, the core principle of separation of powers is flagrantly violated. After a stretch of political manipulations, the amendment does not carry the trust of a significant segment of the population.

In the long run, it may present obstacles to the enforcement of fundamental rights and the upholding of democratic values and could weaken judicial independence.

The writer is a freelance columnist.