Pakistan urgently needed an independent judiciary that adhered to the highest international standards. The resistance from some vested interest groups to the establishment of a Federal Constitutional Court (FCC) with equal provincial representation is surprising.
Equally surprising has been the opposition to the new procedure for the appointment and removal of judges. Both improvements are encapsulated in the 26th and 27th constitutional amendments.
Nineteen years ago, Shaheed Benazir Bhutto demonstrated remarkable maturity and prescience by spearheading the Charter of Democracy. The CoD was a keystone in the proposal for a Federal Constitutional Court. It remains an important document for the restoration of democracy, even 52 years after the passage of the 1973 constitution, because several of its provisions remain unimplemented. In particular, the PPP demanded a mechanism to prevent the unelected institutions from derailing the constitution, as had become their practice.
The CoD also aimed to protect and enhance provincial autonomy and the civil rights of all citizens, including women and minorities. After two devastating military regimes and the compromised political systems of the 1980s and 1990s, the people of Pakistan deserved this genuine window of opportunity.
Readers may recall the devastating 8th and 17th amendments of the Zia and Musharraf governments, approved by a subservient judiciary. A trend of appointing and removing judges through a military-judiciary alliance continued thereafter, dealing crippling blows to the parliamentary form of government and the federal structure of the constitution.
Even 33 years after the passage of the 1973 constitution, the judiciary had not abandoned its role of servicing authoritarian regimes. It was agreed between the PPP and PML-N that the Supreme Court had crossed a red line by dismissing elected governments. An important fact overlooked by segments of civil society is that the judiciary had taken over the function of appointing and removing judges since 1997 and, despite assuming this omnipotence, failed to act independently or deliver justice.
The Supreme Court did not represent the federating units equally. It failed in its original function of adjudicating disputes between the federal and provincial governments. Instead, it appropriated the role of the provincial high courts by enforcing fundamental rights, thereby eroding judicial autonomy at the provincial level.
The CoD promised all provinces a representative FCC to adjudicate disputes between provincial and federal governments and matters arising from the constitutional jurisdiction of the high courts. This would have freed the Supreme Court to focus on its core function as the final appellate court for civil and criminal cases.
These momentous provisions affecting the judiciary remained unimplemented for years, as the powers-that-be sought to maintain supremacy by weakening parliamentary democracy and the federal character of the state. Although the PPP strongly advocated the establishment of an FCC, the PML-N unfortunately sided with the PCO judges and the powers-that-be, despite the CoD having rejected their restoration.
Riding on the Lawyer’s Movement, judges established a parallel authority by dismissing two elected prime ministers without constitutional jurisdiction and continued to subordinate federal and provincial governments.
The superior judiciary frequently summoned ministers, including prime ministers, to courtrooms despite Article 248, which provides immunity in the exercise of official functions. Ministers are responsible to parliament and provincial assemblies, not to courts. Federal and provincial governments are accountable solely to their respective legislatures under Articles 91 and 130.
The Supreme Court also disqualified legislators on moral grounds, despite Article 63(2) requiring a reference from the Senate chairman or assembly speaker. Judges bypassed this by abusing suo-motu powers. In the last 52 years, no minority province has dared to bring disputes with Islamabad before the Supreme Court, given its composition and perceived bias.
Provincial high courts were once independent of the Supreme Court's jurisdiction. District and sessions courts operate under the supervision of provincial high courts under Article 203. Over time, the Supreme Court introduced administrative mechanisms to bring high courts under its control.
The PPP has consistently argued that an FCC with equal provincial representation is essential for a federal parliamentary system. A dispute resolution mechanism dominated by an unequally represented Supreme Court cannot serve as the ultimate constitutional authority. The previous status quo fuelled insurgencies and deepened resentment against the centre.
To evolve Pakistan into an egalitarian welfare state, as envisioned in the original 1973 constitution, major constitutional amendments were long overdue.
The alarm was unwarranted, as the 26th Amendment only modestly changed judicial appointment procedures. It replaced a redundant parliamentary committee with a representative Judicial Commission comprising five judges, four parliamentarians from the treasury and opposition, one woman or minority representative from civil society, one representative of the bar and the federal law minister and attorney general.
This 13-member commission expands to 17 members for high court appointments. While not ideal by international standards, it offers hope by reducing judicial dominance over appointments.
Since 1954, the Supreme Court has largely been pliant. Since 1997, judges have even appropriated the power of appointment and removal, exceeding constitutional limits and international norms. This overreach has undermined parliamentary democracy and endangered the federation.
Finally, the Charter of Democracy’s provision for a Federal Constitutional Court has been implemented. This reform should bring relief to parliament and the provinces. The power to remove judges must rest with parliament, not the judiciary. Pakistan urgently needed the 26th and 27th amendments to move towards a genuine federation under democratic governance.
The writer has served as advocate general of Sindh. He tweets/posts @zamirghumro
