Majreeha

The 26^th amendment passed on 20^th October has created a lot of buzz throughout the country leading to various levels of debate not only among intellectuals but also the laymen.  A zoomed-out picture of the 26^th amendment is that it has changed the composition of the Judicial Commission, appointment of the Chief Justice and transfer of judges.

In order to understand the intricacies of the recent changes to the constitution, it is important to have a background on the well-regarded 18th Amendment of 1973 constitution. It is well known that the true democratic nature of institutions was strengthened by the 18th Amendment – a significant addition was the way the judiciary was made autonomous. The central objective the debates and criticism of the 26th amendment is rooted in the selection criteria of the Supreme Court judges. There have been modifications in Article 175A, which establishes the Judicial Commission, along with appointment and evaluation of judges. Article 184 which interprets the sou motu power of the Supreme court judges, has been curtailed as well.

After 18^th amendment judiciary was made autonomous, and the spirit of law was maintained. A Senior judge was appointed through a formula, avoiding controversies regarding appointment of a Chief justice. According to 26th Amendment the seniority element of it has been altered; now the top three judges will be assessed by the Parliamentary Committee, with eight out of twelve members will be from National Assembly and four legislatures from the Senate. One out of three names will be forwarded to the Prime Minister and ultimately the President, while in the period preceding the letter was directed to the President to be ratified.

In addition to the restructuring of the judges, previously the Judicial Commission weight contingent upon only on judiciary, comprised five judges: the Chief Justice and three members nominated from executive. This led to superseding of majority of judiciary. Now, the decision of parliament has more weightage, by the new restructuring; there will be one Chief Justice, three seniors most judges, one presiding judge, Federal Law Minister, Attorney General of Pakistan, two representatives from the Senate and two from National Assembly. Additionally, one woman number or a member representing the minority will be nominated by the speaker of the house.

This saturation of members of the parliament overshadows the powers of judiciary. This leads to politicising the judiciary making it controversial. This major development fosters an atmosphere of ‘serving thy masters,’ where judiciary will have obligations to the political party that has a majority in the parliament. The suo motu action of the Supreme Court has been tailored to the Judicial Committee. Criticism against judicial activism of the Supreme Court has been under debate. However, it is crucial to ruminate that for a country like Pakistan, where governance tends to be futile due to administrative and executive shortcomings. At these junctures, the judiciary acts as custodian of the rights of people through suo motu. Now, this power play has shifted to the executive’s, side thus making an end to the checks and balances in the governance by the judiciary.

In conjunction with this, it has led to polarization and public hatred for the Executive. Analysts argue that it is fuelling the fire among the youth and the general public, where state stakeholders are finding ways to cater to their own needs and legalize their illegal actions, instead of working for the welfare of the nation. It is argued that the judge’s decision is swayed by considerations of how it might impact his/her future prospects, particularly his potential appointment as Chief Justice, letting personal ambition influence his/her ruling. Moreover, this new amendment creates a chaotic environment in the political arena because today's ruling party will be tomorrow's opposition, setting the direction of an ongoing cycle of volatility and distress. This shift in power dynamics can impede the efficiency of Governance, as political parties narrow their focus to undermining their predecessors rather than engaging in issues of national significance.

Undoubtedly, amendments are an integral part of the constitution and are essential to keep it dynamic and evolving. However, the way in which the 26th amendment was implemented overnight raises numerous questions and suspicion over its legitimacy. This recalls the amendment to Article 6 of the 1955 constitution, which outlined the transfer of authority from the Governor-General to the President. While it evidently strengthened parliamentary democracy and promoted democratic governance, the sudden changes introduced in the 1955 constitution faced a lot of criticism, as they were passed without parliamentary debate, thus compromising the democratic process. Notable figures like Qudratullah Shahab and Abul Ala Maududi viewed it as an indication of political opportunism, a shortcoming in leadership foresight, and a lack of moral legitimacy. It was argued that this decision eroded public trust and confidence in the governing system.

A law remains relevant to society when it is dynamic and evolves with passage to time. As mentioned before, the 18th Amendment made significant improvements to the law; however, the amendment diverged significantly from solving existing problems.

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Majreeha is doing BS Political Science at University of Central Punjab, Lahore, Pakistan.