Mudassir Rizwan
The current discourse surrounding the limits of parliamentary sovereignty has captivated political discussions and drawn significant attention from the judiciary and legal community. The contentious passing of the 26th Constitutional Amendment by the government has sparked debates, exposing fractures within the opposition and revealing a discordant leadership that seems unable to mount a cohesive challenge. While one might perceive this as a resolution to the long-standing debate over constitutional amendments, it is, in reality, a precursor to a broader reassessment of institutional roles and power dynamics.
Self-proclaimed advocates of democracy and individual freedoms experienced considerable dismay as the parliamentary coalition effectively ‘bulldozed’ their way through the amendment process. This calculated maneuver, reminiscent of Machiavellian tactics, raises critical questions about the necessity of such actions—questions that contemplate whether the subjugation of the judiciary was a necessary evil to restore political and economic stability.
Montesquieu’s seminal work, “The Spirit of Laws,” highlights the necessity of accountability in governance, forming the backbone of the separation of powers doctrine. This framework, further developed by A.V. Dicey, emphasizes a legal system where various governmental branches act as checks and balances against one another to prevent any singular institution from overwhelming the others. This is crucial in fostering a rule of law that protects citizens from tyranny. Judicial independence serves as a cornerstone of this structure, imposing a significant responsibility on the judiciary to act as guardians of the law.
The recent amendment raises concerns about an imminent encroachment of legislative authority over the judiciary, particularly in relation to the appointment of the Chief Justice of Pakistan. Previously guided by a seniority-based system, the appointment of this pivotal judicial figure is now shrouded in uncertainty following the modifications to Article 175A. The current procedure designates the president as the appointing authority, based on the recommendation of the prime minister and a twelve-member parliamentary committee. This shift has led many to label the amendment as a blatant attempt to politicize the judiciary and undermine its autonomy.
Opponents of this erosion of judicial independence have a longstanding history rooted in the lawyers’ movement and periods of military control. Resistance has often been spurred by calls to uphold fundamental rights, especially amid significant protests by judges, notably those from the Islamabad High Court, against government actions perceived as harmful to the rule of law, including the detainment of opposition leaders and activists. The growing presence of lawyers within the political framework of the Pakistan Tehreek-e-Insaf (PTI) party has amplified these concerns. Their unified stance seeks the release of PTI founder Imran Khan while calling for investigations into irregularities in recent electoral processes, suggesting that these political tensions may have spurred the government to introduce the controversial amendment.
While it might be overly cynical to predict that the courts will become mere instruments of the legislature—as Justice Munib Akhtar has remarked—there is a very real risk that the judiciary could face a painful recalibration, withdrawing from its prior engagement with selective justice that has characterized its relationship with political entities. The judiciary has indeed played a crucial role in protecting fundamental rights. However, it is essential to examine the inconsistencies and failures in delivering justice throughout Pakistan’s tumultuous political history.
The pattern of judicial overreach and its implications on governance cannot be overlooked. Instances of political manipulation, such as the disqualification of prime ministers and contentious rulings, illustrate the judiciary’s willingness to exert its authority. A former chief justice’s initiative to bolster judicial independence was marred when he invoked what many saw as self-serving interpretations of suo-motu jurisdiction, altogether undermining the public’s trust in the judiciary and deterring potential foreign investors.
Historically, power within Pakistan has oscillated like a pendulum between various state institutions. Recently, however, the momentum has coalesced towards a singular pursuit of suppressing dissent, with judicial decisions often serving as the final stamp of this suppression. Paradoxically, the very figures now calling for justice were instrumental in challenging democratic norms when they last entered Islamabad in 2018. Notably, the political demise of a three-time prime minister arose from a legal petition rather than through electoral processes.
Under ordinary circumstances, the constitutional amendment in question may not have incited significant unease. However, widespread discontent stems from the manner in which it was hastily executed, devoid of meaningful public deliberation. Such concentration of power has exacerbated the rift in trust between the state and its citizenry.
The legitimacy of the current legislature to enact such amendments is a pressing concern, particularly considering the perceived ineptitude of the Election Commission of Pakistan and the government itself. These systemic failures have severely tarnished public confidence. If Prime Minister Shehbaz Sharif is indeed striving for stability, a prudent strategy is imperative, as attempts to supersede established norms often yield disastrous repercussions.
Drawing historical parallels, one might recall that Augustus was able to proclaim “Pax Romana” not merely through military prowess but by securing the mandate of his citizens. In a democratic framework, governance relies on the consent and support of the people—something that the current administration would do well to remember as they navigate these politically treacherous waters. The context of Pakistan’s political landscape underscores the critical importance of preserving judicial independence to maintain the balance of power and uphold the foundations of democratic governance.
