Fractured Foundations and Pakistan’s Kafkaesque Constitutional Amendment
Pakistan is in the throes of yet another constitutional crisis. The ruling coalition government, which is heavily criticized for coming to power through blatantly rigged elections in February 2024, launched a campaign to amend the 1973 Constitution in significant ways. After weeks of speculation, the federal cabinet approved a draft on Sunday afternoon, which was approved by the Senate later the same evening. The National Assembly approved the draft today around 5 a.m., with the President assenting shortly thereafter. This amendment, shrouded in mystery and mired in controversy, was a surprise to everyone, that is, except to those who have been privy to machinations behind closed parliamentary doors. In this two-part series, we first discuss the procedural and political context of the 26th Constitutional Amendment, while a follow-up statement will discuss the substantive elements of this amendment.
Some of the earlier government drafts leaked on social media and thrown upon the wings of rumor mills incorporated some troubling proposals. These included plans to extend the tenure of the controversial Chief Justice of Pakistan and Chief Election Commissioner, as well as a surreptitious constitutional protection to the terms and extensions therein of Army Chiefs. There was talk of a curtailment of fundamental rights to create space for military courts to try dissidents and easing the processes for banning opposition political parties. Rumors being hearsay, and secret amendments being secretive, none of these suspicions could be verified until an official constitutional amendment bill was suddenly tabled for voting in both houses and passed within 12 hours.
What appeared to be common to the various drafts, however, was a fundamental restructuring of the apex judicial institution. The proposals in this regard ranged from stripping the Supreme Court of Pakistan (a generalist court with both appellate and constitutional jurisdictions) of its constitutional mandate and creating a specialist Federal Constitutional Court, to alternatively creating a pre-determined constitutional bench comprising the seniormost judges of the Supreme Court. The latter idea had some traction and made its way into the promulgated amendment. The Supreme Court has genuinely and legitimately courted political controversy in recent years on account of ‘bench-fixing’, whereby Chief Justices were able to dictate preferred outcomes in constitutional cases by exercising discretionary powers to decide which of the seventeen members of the apex court would sit on the benches deciding constitutional petitions.
Constitutional Amendment Process: The Method in the Madness
The emerging consensus in comparative constitutional design literature indicates that the process of constitution-formation, and by extension amendment, appears to be as significant as the design of the constitution itself and may have a considerable impact on both the structures and the legitimacy of the constitution. There are a range of choices as regards possible actors and processes available in this respect. However, three distinct models of constitution-making, and/or combinations thereof, stand out: a dedicated constituent assembly or convention; conferring the task of a constituent assembly to a supra-majority in the legislature; and popular ratification through a referendum. In Pakistan, the institutional choices are constrained as the Constitution empowers the parliament with amendment powers if approved by a two-third majority in both houses, the National Assembly and the Senate.
Ultimately, the value of any model or process of constitution-making or amendment depends on the extent to which it provides for public participation, is responsive to the issues raised in the deliberations, and hence enhances the legitimacy of the constitution. The emergent literature on transitional constitutionalism in post-conflict societies and new nation states, for example, identifies the open and participatory nature of constitution-making as one of the most significant aspects that may enable such a polity to move beyond political conflict and reach a broad-based agreement. Furthermore, the credibility and the democratic credentials of the constituent assembly or the legislature may depend upon how representative these institutions are and whether they represent most, if not all, of the diverse political, ethno-linguistic, religious and/or regional interests in a meaningful way.
The hurried, surreptitious and conspiratorial nature of the recent amendment process in Pakistan is self-evidently problematic. However, there are deeper issues that need to be highlighted. First, the utter lack of democratic standing of the current parliament delegitimizes any amendment, even if good in substance and design based on other criteria. The February 2024 elections through which this parliament suffered from egregious pre- and post-poll rigging. By most accounts, the opposition Pakistan Tehreek-e-Insaf (PTI) led by Imran Khan would have won the elections – only the margin of victory is disputed – if the elections had even a modicum of fairness. The PTI vehemently opposes the proposed amendment, both in the parliament and on the streets.
Worse still, the path to this constitutional perversion has been painstakingly paved by the Supreme Court and its incumbent Chief Justice, Justice Qazi Faez Isa. The Qazi Court was complicit in pre-poll rigging by denying the PTI its electoral symbol, the cricket bat. The PTI still emerged as the largest political party in the National Assembly. The election symbol fiasco in the court enabled a partisan Election Commission to deny the PTI the status of a parliamentary party, declare its elected members as independents, and deny it the constitutionally mandated share of reserved seats in the parliament. When a majority in a full court bench of the Supreme Court overturned the Election Commission’s machinations, designed to hand over these seats and a supra-majority to the government coalition, that decision has been defied to date by the Election Commission and the government.
Justice Qazi Faez Isa is scheduled to retire on October 25 when he reaches the age of 65. According to previously settled constitutional principles, the seniormost puisne judge should automatically take charge as the next Chief Justice of Pakistan. The hurried manner in which Justice Qazi constituted a like-minded bench that set aside under review jurisdiction an earlier decision of the Supreme Court that had barred defections and floor-crossing in parliament provided additional circumstantial evidence for suspicions of an extension in his tenure, which ultimately did not materialize
Constitutional Court or Bench: ‘to be or not to be’?
Theoretically, the establishment of a specialist court to cater to only constitutional matters is not necessarily a malicious endeavor. Many countries around the world, such as Germany, do have specialist constitutional courts. In addition to assuring expertise in the area which a judge of a generalist court may not have, they also ensure efficiency not only in resolving constitutional disputes – something which Pakistan and its politics have been embroiled in for years – but also will ensure reducing current case backlog of the Supreme Court, ensuring speedier resolution of civil and criminal appeals, which currently stay pending for years, and sometimes decades.
There is little doubt that Pakistan’s judiciary needs reform. However, the goal here appears to be more of a reduction in the powers of the Supreme Court and undermining the independence of the judiciary. When theorizing about the potential efficacy of the constitutional bench, one must also consider whether in fact it will have any legitimacy in the eyes of the people when it is created under so much uncertainty and apprehension. In fact, it may only further destabilize the judiciary, where we are already witnessing growing fissures within the Supreme Court bench. When assuming that the judges of the constitutional bench will be better situated for the resolution of constitutional disputes, one must also see that this amendment does not provide any criteria for judicial appointments, merely suggesting that the Parliament shall make laws for appointment later, and in the meantime, the President in consultation with the Prime Minister will appoint judges to this specialist court.
One must understand here that the Parliament has recurrently failed over the decades to devise and enforce an appointment system for High Courts and Supreme Court which would ensure appointments based on merit, and gender, ethnic, and religious diversity. Many appointments made to these courts are lawyers who have an influential role to play in bar politics. In fact, people who have served as judges in the district civil and criminal courts rarely make it to these superior courts.
Furthermore, when viewing the Parliament’s legislative history, it is often reactionary to prevailing issues – it has a historical tendency of creating new governmental entities instead of addressing the root cause of the issues being faced. The current regime is also responsible for banning X (formerly Twitter) since the general election was held on February 8, 2024, and creating yet another agency for cybercrimes without affording any necessary protections to the public at large. This amendment appears to be a similar endeavor – create another judicial forum without addressing the reasons why the existing courts fail to operate in a proper manner.
Un-learned Lessons of History
The Parliament itself is significantly fissured – the coalition government was unable to come up with the necessary 2/3rd majority needed to pass this amendment in the first attempt. The secrecy surrounding the bill, with initial hopes of the current hybrid regime to pass it over a weekend without any debate and generating any form of consensus, appears to be yet another anti-democratic move in Pakistan’s history which is already marred with significant periods of authoritarianism.
The clash between the legislature and the judiciary, particularly the Supreme Court, started soon after Pakistan’s creation, when the Federal Court (later renamed as the Supreme Court) upheld the dissolution of the First Constituent Assembly (Maulvi Tameezudin Case). The Supreme Court successively legitimized each martial law using the Doctrine of Necessity, only to declare them illegal after the dictator’s departure. The Court also upheld all but one dissolution of the National and provincial assemblies during the 1990s. The Supreme Court is also responsible for removing two Prime Ministers – Yousaf Raza Gillani (convicted for contempt of court) and Nawaz Sharif (declared dishonest). While no Prime Minister has completed the five-year term in office, only one Prime Minister was removed from office through a vote of no confidence, which is also reflective of the recurrent intrusion by the other two state organs.
Over time, the Supreme Court came to be seen as an agent of the executive, particularly the military establishment. Possibly to overcome this image and amass more powers along the way, the Supreme Court started engaging heavily in Public Interest Litigation using its original jurisdiction, which the 26th amendment has altered. After the “lawyers movement” and the restoration of Chief Justice Chaudhry in 2009, this became the sword through which the Court became an active political entity. From removing Prime Ministers, ordering demolitions across Pakistan’s largest metropolitan city, to conducting raids of privately owned hospitals, the Court’s original jurisdiction is only limited by the imagination of the Chief Justice.
Despite explicit bar in the Constitution, the Supreme Court used its original jurisdiction to hear challenges against constitutional amendments, using the Salient Features Doctrine. While there is no Basic Structure embodied in the text of Pakistan’s Constitution, the Court determined that they could hear challenges against constitutional amendments if the amendment threatened federalism, parliamentary form of government, independence of the judiciary, read in line with Islamic Injunctions.
When the first democratically elected government after General Musharraf’s coup passed the 18th Constitutional Amendment (shift back to parliamentary form of government, increasing provincial autonomy, amending the judicial appointment procedure), the then Chief Justice Chaudhry Iftikhar used the “threat” to the independence of the judiciary as a precursor for holding the entire Amendment hostage, and forcing the passage of the 19th Constitutional Amendment, which greatly empowered the Chief Justice in appointments to constitutional courts.
The Salient Features Doctrine was invoked again when the 21st Constitutional Amendment granted military courts a two-year jurisdiction to prosecute civilians charged with sectarian violence. However, while the majority opinion saw this as an infringement of judicial independence within the scope of the Salient Features Doctrine, they allowed this amendment, which was pushed through by the military establishment.
Given the process, political setting, and the far-reaching changes the 26th Amendment enacted, a prolonged constitutional controversy and the sword of judicial review will always hang over this amendment.
