Supreme Court. PHOTO: FILE
ISLAMABAD:
The fate of Pakistan’s highest court hangs in the balance as the government pushes through the 27th constitutional amendment – a move that could redefine, or even rename, the Supreme Court itself.
Tense deliberations are reportedly underway within the judiciary over whether to collectively respond to the existential threat to judicial independence.
Under the proposed amendment, the Supreme Court would be placed under the supervision of a newly created Federal Constitutional Court (FCC), with its decisions bound by the latter’s case law. The FCC’s first chief judge would be appointed by the executive branch, a move that critics say risks undermining the separation of powers.
Observers described the development as perhaps “the last week of the current apex court”, noting that the amendment even seeks to remove “Pakistan” from the name of the SC and the title of the chief justice after the reform takes effect.
The government, for its part, seems determined to pass the bill within a few days.
Chief Justice Yahya Afridi is expected to leave for Turkey on November 12, after which senior-most judge Syed Mansoor Ali Shah will take over as acting CJP. Still, if the 27th Amendment becomes law, the government could choose any Supreme Court justice for the position.
As the new week begins, all eyes are on the SC and how its judges will react to the government’s controversial amendment. Monday marks the first working day since the bill was tabled in Parliament, and expectations for a response are high.
Lawyers predict that the Court may soon break its silence, either through an institutional stance or through individual justices expressing dissent against the proposed changes.
Legal experts are urging the judiciary to stand united in defending its independence – a cornerstone of the Constitution – and have called on CJ Afridi to convene a full court meeting before the bill goes any further.
The SC may also ask the Attorney General of Pakistan to submit the 27th Constitutional Amendment Bill to it for consideration, amid serious apprehensions over the threat to the independence of the judiciary.
The response of CJP Yahya Afridi and the three members of the constitutional bench committee will be crucial regarding the proposed amendment.
The 27th Amendment states that the executive branch will appoint the first chief judge of the FCC from among the current judges of the SC.
Under the proposed 27th Amendment, the executive branch would appoint the first chief justice of the newly created FCC from among the current SC judges, a provision that critics see as striking at the heart of judicial autonomy.
The government is yet to justify why a new apex court is needed when the existing CB has already ruled in its favor on key issues over the past year. So far, no one in the judiciary has questioned why the SC should be subordinate to a body whose head must be appointed by the government.
Even legal experts from the ruling parties do not advise their political leaders on the legitimacy of a court whose president is appointed by the executive. Likewise, Supreme Court justices who might be candidates for appointment to the FCC must recognize the serious doubts surrounding the legitimacy of the current Legislature.
A major challenge will be how the new FCC will dispel the perception that it is operating under the influence of the current regime.
There are two schools of thought regarding SC judges who have been sidelined by the executive and their peers.
The first suggests that they should not continue to be part of the current system. Former Additional Attorney General Tariq Mahmood Khokhar says “the time has come to resign on principle and in good conscience.”
He added that “there are precedents, but few in number, where renouncing judicial office was considered the most honorable solution.”
However, another senior lawyer disagrees. “I sincerely hope that no judge will act in haste or on instinct. No one should resign. We just have to wait and see,” he said. He added that all independent judges should not be discouraged because “it’s not over yet.”
