Qamar Bashir
Former Press Secretary to the President
Former Press Minister to the Embassy of Pakistan to France
Former MD, SRBC, CEO, ATV
Today marks a significant moment in Pakistan’s legislative history with the passing of the 26th Constitutional Amendment by the Senate, with a narrow margin of just one vote. The PTI, labeling the process illegal and unconstitutional, abstained from voting and predicted the bill’s eventual reversal. While the Senate’s approval is an important step, the amendment now faces a rigorous test in the National Assembly, where the government has gained strategic leverage by bringing Maulana Fazlur Rehman on board, effectively distancing him from PTI’s opposition. In a calculated move, the government presented the bill first in the Senate, deviating from the usual practice of introducing it in the National Assembly. This strategy allowed the government to control the legislative agenda and limit the scope of debate in the Assembly, where opposition forces might have been more effective. By securing Senate approval, the government created momentum and exerted pressure on Assembly members, making it more challenging for opposition parties to mount resistance. The passage of the bill in the Senate also provides an opportunity to amend and address concerns before it reaches the National Assembly, thus improving its chances of success.
A key development was the significant amendments made to the draft after resistance from JUI Chairman Maulana Fazlur Rehman, bringing the proposal more in line with democratic principles and provision of charter of democracy signed in 2006 by all main political parties. The true impact of this legislation will only become evident upon its implementation. Comparing these amendments to similar provisions in established democracies can offer insight, but the broader implications will unfold in practice.
The amendments to Articles 28 and 175 of Constitution aim to establish a committee with equal representation from Treasury and Opposition members. The Chief Justice leading the commission responsible for appointing judges introduces accountability but raises concerns about potential biases. Additionally, a Special Parliamentary Committee will select the Chief Justice from the three senior-most judges, fostering scrutiny and democratic oversight. This approach mirrors practices in established democracies, such as the U.S., where Supreme Court justices are nominated by the President and confirmed by the Senate; Germany, where judges are appointed by a committee from both legislative bodies; and Canada, which involves a selection committee of legal experts.
The new Article 191 provides the creation of a Constitutional Bench in Pakistan aims to enhance regional representation by appointing judges from all provinces. This could increase public trust in the judiciary by ensuring that various communities feel represented. Comparatively, established democracies like Canada and Australia emphasize diversity in judicial appointments, while India incorporates regional representation through judges from various High Courts, though its opaque appointment process faces criticism. In Bangladesh, while there is no formal requirement for regional representation, political influence in appointments raises concerns about judicial independence.
The proposed amendments to Article 177, which bars foreign nationality holders from becoming judges, and Article 179, which changes the Chief Justice’s term to three years while keeping the retirement age at 65, have significant implications for Pakistan’s judiciary. The bar on foreign nationality holders aims to enhance public confidence by ensuring judges have a strong connection to Pakistan. Changing the Chief Justice’s term introduces accountability, yet the shorter duration could undermine stability and continuity in leadership. In comparison, established democracies like the U.S. and Canada have no term limits for Supreme Court justices, promoting judicial independence, while India and Bangladesh maintain a retirement age of 65 and 67, respectively, without term limits.
The proposed constitutional amendments in Pakistan, particularly regarding Article 200, the establishment of a Federal Constitutional Court, and changes to Articles 17, 48, 81, and 184, introduce significant changes to the judicial structure. These amendments aim to strengthen judicial independence by requiring judges’ consent for transfers between High Courts and creating a specialized Federal Constitutional Court to handle political party disputes and inter-governmental issues, similar to Germany’s Federal Constitutional Court. Compared to India and Bangladesh, where such matters are dealt with by the Supreme Court, Pakistan’s model offers specialization but also raises concerns about judicial accountability and potential political interference.
The proposed constitutional amendments to Articles 48, 63-A, and 177 in Pakistan bring important changes that reflect practices in other democracies. The amendment to Article 48, granting the Prime Minister immunity from judicial scrutiny over advice sent to the President, mirrors systems in countries like India, where executive advice is protected, though global trends emphasize judicial oversight to balance power.
The change to Article 63-A, allowing votes cast against party lines to be counted, shifts away from strict anti-defection rules seen in India and moves toward models like the U.K. and U.S., promoting independent decision-making in Parliament but potentially weakening party unity.
The amendment to Article 177, barring foreign nationality holders from becoming judges, aligns with common practices in democracies such as the U.S., India, and the U.K., where judicial positions are reserved for citizens to safeguard national interests and judicial integrity.
In conclusion, the 26th Constitutional Amendment in Pakistan, while controversial, has the potential to bring about several positive impacts if implemented with careful attention to transparency, accountability, and judicial independence. The introduction of a Federal Constitutional Court could ensure specialized handling of political and inter-governmental disputes, thereby depoliticizing the judiciary and improving the efficiency of the legal process. The changes to judicial appointments, with greater representation and scrutiny, may foster a more balanced and transparent system, ensuring that appointments reflect democratic values. Additionally, amendments like barring foreign nationality holders from judicial positions and redefining terms for the Chief Justice aim to strengthen national integrity and accountability within the judiciary. While concerns about the potential for political interference remain, the amendments offer a framework for enhancing the independence of the judiciary, promoting democratic oversight, and ensuring more inclusive representation in key institutions. The true measure of success, however, will depend on the commitment to upholding these reforms in practice, ensuring they contribute to a more balanced and transparent democratic system in Pakistan.
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