“Constitutional Crisis in Making”

The Parliament must keep the judicial power to interpret the Constitution from the apex court and vest it in, effectively, a body subordinate to the government. This critical point is at the heart of the 26th Constitution Amendment Bill, a circulating draft. If the proposed changes are indeed what the government intends to implement, we may be witnessing the beginning of a Constitutional Crisis in Making. The bill threatens the foundation of judicial independence, posing serious risks to the balance of power between the judiciary and the executive. This article is written in the hope that a few undecided parliamentarians—perhaps eight or ten—will recognize the gravity of the situation and act with wisdom and courage to prevent what amounts to a national suicide pact.

Every parliamentarian, regardless of political affiliation, must reflect on their willingness to rubber-stamp a fundamental restructuring of the nation’s constitutional system without adequate opportunity for debate, consideration, or even the most basic scrutiny of the proposed amendments.

A Solution to What?

For several months, speculation swirled about a bill intended to extend the tenure of the Chief Justice of Pakistan, increase the retirement age of judges, or even expand the number of Supreme Court judges. Any one of those would have been controversial, transparently serving political objectives, but the reality is far worse. The 26th Constitution Amendment Bill introduces changes that could significantly weaken the judiciary’s role in upholding the rule of law, thus sparking a Constitutional Crisis in Making.

The most alarming provision of the bill is that it abolishes the jurisdiction of the Supreme Court in cases involving constitutional petitions. All such matters will be transferred to a newly established constitutional court, which will be led by a chief justice appointed solely by the president on the advice of the prime minister. The president will also hand-pick the remaining judges of this court after a mere consultation with the new chief justice. This setup not only removes the judiciary’s power to act as a check on the executive but places it firmly under government influence.

Moreover, the bill stipulates that no court, whether old or new, shall have the authority to examine actions carried out under so-called “national security” laws. High Court judges or sensitive cases could also be transferred without consent from one high court to another, further undermining judicial independence.

Taming the Judiciary 101

A closer look at the bill reveals its most dangerous provisions. The proposed amendments to Article 175-A of the Constitution, which deals with the appointment of judges to high courts, the Supreme Court, and the Federal Shariat Court, essentially merge the roles of the judicial commission and the parliamentary committee responsible for appointing judges. On the surface, this could be defensible, as there has been longstanding criticism of the 19th Constitutional Amendment and certain Supreme Court judgments that diminished the role of the parliamentary committee in these appointments.

However, the real danger emerges when we consider how the president will appoint the first chief justice of the new constitutional court, acting only on the sole advice of the prime minister. Similarly, the president will select the initial judges of this court in consultation with the first chief justice. Notably, there is no requirement that the initial chief justice or judges come from the ranks of current Supreme Court justices. The pool of candidates could include retired judges or even senior advocates with 15 years of practice. 

This setup creates a dangerous precedent, allowing for political interference in judicial appointments without any input from a properly constituted judicial commission. The bill establishes a Constitutional Crisis in Making by diluting the independence of the judiciary and making it susceptible to the influence of the executive.

Even future appointments to the constitutional court will be fraught with risk. After the initial appointments, the merged judicial commission will play a role, but the bill ensures that government-appointed members, including six judges of the new constitutional court and representatives from the ruling party, will dominate the commission. This means that the ruling political party will maintain a firm grip over judicial appointments for years to come.

Abolishing the Supreme Court

The most startling consequence of this Constitutional Crisis in Making is the effective abolition of the Supreme Court’s role as the highest judicial authority in matters of constitutional law. The bill transfers the entire original jurisdiction of the Supreme Court—such as disputes between governments and petitions involving fundamental rights enforcement—to the new constitutional court. This new body, controlled by politically appointed judges, will now handle the most crucial cases.

Furthermore, the bill bars this new court, and all others, from hearing cases related to individuals acting under laws concerning “national security,” a broad and vague term that could encompass a wide range of government actions. The independence of the judiciary in scrutinizing government decisions would be severely curtailed, leaving the executive branch unchecked in critical areas.

The bill also transfers appellate jurisdiction in writ petitions—a key tool for citizens to challenge the actions of governmental authorities—from the high courts to the constitutional court. This includes routine challenges to decisions made by town planning authorities, tax departments, the Securities and Exchange Commission, the State Bank of Pakistan, and other government entities. As a result, most cases involving government overreach will now land before a court subordinate to the executive, further entrenching the government’s power.

In practical terms, very few functions will remain for the Supreme Court. It will only hear appeals in certain statutory matters, but even in these cases, if a substantial constitutional issue arises, the process will transfer the matter to the constitutional court. This strips the Supreme Court of its traditional role as the guardian of constitutional law, reducing it to a ceremonial body with little actual power.

No Lessons Learnt

Beyond the judiciary, the bill proposes other amendments that reveal the broader motivations behind this Constitutional Crisis in Making. For example, it seeks to amend Article 186-A to allow the constitutional court to transfer cases from one high court to another if it disapproves of how a particular case is proceeding. This echoes a similar attempt made during the Musharraf era, which was ultimately blocked by the political parties that are now promoting this new bill.

Additionally, the bill removes the obligation of all executive and judicial authorities to act in aid of the Supreme Court, transferring this duty to the new constitutional court. This change further marginalizes the Supreme Court and elevates the constitutional court as the ultimate authority in legal matters.

The proposed amendments even seek to shield future constitutional amendments from judicial review. Under Article 239, the bill provides that if any court attempts to challenge a constitutional amendment, its judgment shall be “of no legal effect.” This effectively removes the judiciary’s power to protect the basic structure of the Constitution, allowing a parliamentary majority to pass amendments without any checks or balances.

At this critical juncture, parliamentarians must ask themselves if they are willing to be complicit in this unprecedented erosion of judicial independence and constitutional integrity. The 26th Constitution Amendment Bill not only threatens the structure of Pakistan’s democracy but risks setting the country on a dangerous path toward authoritarianism. The time to act is now before this Constitutional Crisis in Making becomes an irreversible reality.