Two wrongs don’t make a right

“Nothing happens in a vacuum” as the saying goes. Much ink has been spilled discussing the Constitution (Twenty-Sixth Amendment) Act, 2024. Per its critics, the Twenty-Sixth Amendment has delivered a fatal blow to judicial independence. It is a Machiavellian piece of legislation, and a poorly drafted one to boot.

Nothing can really be said in its defence. However, it is evident that the Twenty-Sixth amendment is a reaction, or more aptly, an over-reaction to the preceding era of “judicial (activism) independence”. How this hard-won judicial independence was squandered and lost in a decade and half is a story worth revisiting.

Needless to say, what follows is only an excerpt; some highlights and lowlights picked out, perhaps subjectively, to buttress the above premise. A comprehensive account would fill many volumes. A purely objective one may be a pipe dream.

March 17, 2009 dawned with notifications for restoration of Iftikhar Muhammad Chaudhry (as Chief Justice of Pakistan) and other superior court judges. This was the culmination of a lawyers’’ movement that started in November 2007 when General Musharraf sent Chief Justice Iftikhar Chaudhry home along with dozens of Supreme Court and High Court judges. The PPP Government, elected in February 2008, refused to reverse Iftikhar Chaudhry’s dismissal, adding to the crisis.

Eventually, faced with a ‘long march’ on March 14, 2009, the Government back-tracked in the early hours of March 16, 2009. All judges deposed by General Musharraf on November 3, 2007 would be restored; Celebrations followed and rightly so. Concerted efforts to restore the independence of judiciary had borne fruit. People waited with bated breath to see how the resurrected CJP would behave after resuming office.

Chief Justice Iftikhar Chaudhry did not take long to act. The Sindh High Court Bar Association judgment was delivered on July 31, 2009, less than 5 months after his restoration. It gave an indication that retribution not forgiveness was to come. Dozens of judges were sent home packing, this time by the Supreme Court itself.

General Musharraf’s actions of November 3, 2007 were declared unconstitutional, paving the way for his eventual conviction for treason some years later. The Islamabad High Court, established in December 2007, unceremoniously ceased to exist with a stroke of the pen.

The tone was set for the rest of Chief Justice Iftikhar Chaudhry’s tenure and he did not disappoint. Suo motus became a daily norm. Government officials were routinely ridiculed and humiliated. Many elected parliamentarians were sent home for not being “sadiq and ameen”, having submitted false affidavits for things like fake degrees and dual nationalities. These disqualifications were stated to be life-long. Prime Minister Gilani was disqualified in June 2012 upon conviction for contempt of court.

Shortly after the restoration of Chief Justice Iftikhar Chaudhry, some attempts were made to rein in the judiciary. The Constitution (Eighteenth) Amendment Act, 2010 was passed in April 2010 with bipartisan support. The process of judicial appointments to the superior courts was completely overhauled with the insertion of a new Article 175A providing for a Judicial Commission of Pakistan and a Parliamentary Committee.

This was meant to curtail the oversized role given to the Chief Justice of Pakistan in judicial appointments by judicial precedents from the 90s, which made his recommendations binding on the executive. The Eighteenth Amendment was challenged before the Supreme Court, with the new process of appointment of judges also coming under detailed scrutiny.

Through an interim order on October 21, 2010, the Supreme Court referred the matter back to Parliament with suggested changes. There was an implicit threat that Article 175A would be struck down as ultra vires if Parliament did not concede. In the meanwhile, appointments would take place as per the under-challenge Article 175A read with the interim order of the Supreme Court. For all intents and purposes, a constitutional provision had been modified.

In the ensuing game of chicken, Parliament blinked and rapidly delivered the Constitution (Nineteenth) Amendment Act, 2010 to pacify the Supreme Court. The strength of serving judges in the Judicial Commission of Pakistan was increased and the Parliamentary Committee was further weakened. Alas, this policy of appeasement did not assuage the judiciary.

Through hastily drafted Rules, the Judicial Commission gave the Chief Justice of Pakistan and the Chief Justices of the high courts sole say on nominations to their respective courts, essentially setting them up as gatekeepers. A series of judicial decisions, starting from the Munir Bhatti case in 2011, further decimated and denigrated the role of the Parliamentary Committee. The message was clear: in matters of judicial appointments, the judiciary would countenance no interference or oversight.

In the meanwhile, one of the more positively received provisions of the Eighteenth Amendment – the senior-most judge of the Supreme Court would now automatically become the Chief Justice of Pakistan when a vacancy occurred – had some unintended consequences. This had been a long-standing demand of the bar and consistent with judicial precedents, to avoid lobbying before the executive and maneuvering between senior judges.

However, after the Eighteenth Amendment only the timing and strategy of the maneuvers changed, as the game of checkers gradually morphed into chess. By choosing which High Court judge was elevated to the Supreme Court at which time, it was possible for the incumbent Chief Justice of Pakistan to “appoint” the future Chief Justice(s) years and at times even more than a decade in advance.

Save for events of untimely death or resignation, it became possible to chart out with certainty which judge of the Supreme Court would become Chief Justice, when he would become Chief Justice and for how long.

Conversely, it was also possible to identify the ones who would never become Chief Justice. In effect, amongst the puisne judges of the Supreme Court, two different classes were created, those who one day become CJP and those who would retire as puisne judges only. The former were treated with greater awe and deference by all and sundry, not by dint of their competence or intellect but solely considering their perceived future importance. Needless to say, all this politicking and intrigue bred resentment among both High Court and Supreme Court judges.

Still, the judiciary was not only surviving, it seemed to be thriving. Suo motos were still taking place; their frequency and nature depending largely on the personality and interests of the incumbent chief justice. Parliamentarians were still being disqualified at a regular pace.

Another Prime Minister was sent home in 2017, this time for a false affidavit. He was also declared to be not “sadiq and ameen”. A larger bench of the Supreme Court re-affirmed that such disqualifications were lifetime. To the uninformed observer, it was business as usual. Yet a closer look would have revealed the strains beneath the surface.

In hindsight, while many missteps can be identified in the lead-up to the current debacle, none seems more ill-conceived and quixotic than the reference filed under Article 209 of the Constitution by the President of Pakistan for removal of Justice Qazi Faez Isa in May 2019. Justice Qazi Faiz was destined to be Chief Justice from September 17, 2023 until October 25, 2024.

Justice Qazi Faez, joined by some Bar Councils and Associations, challenged the Presidential Reference in the Supreme Court’s original jurisdiction under Article 184 (3). Initially, by a 7-3 verdict in June 2020, the Supreme Court of Pakistan quashed the Reference but referred his wife’s tax case to the Federal Board of Revenue. This referral was also eventually reversed by a 6-4 verdict in April 2021 in Review Petitions filed by, amongst others, Justice Qazi Faez and his wife.

Both appeared in the Supreme Court in person to plead their case. The discord sowed by these proceedings drew sharp battle lines amongst the apex court judges; divisions that would remain in place for years to come. It was a deep schism in a judiciary hitherto generally perceived as united, and one that the institution would never fully recover from. The Presidential Reference was a complete failure – one with far reaching consequences.

2022 was a year of political upheaval, witnessing the first successful “constitutional” removal of an elected Prime Minister through a vote of no-confidence. The judiciary became deeply embroiled in political cases, one after the other, and unenviably managed to antagonize all sides. Yet, serious allegations of bias in favour of one political party were becoming harder to refute.

Public opinion and faith in the judiciary was at an all-time low. A judgment of the Supreme Court in May 2022 held that votes of defecting parliamentarians could not be counted under Article 63A of the Constitution. Widely criticized, the Article 63A judgment, along with some other collateral legal wrangling eventually resulted in PML-N losing its short-lived Government in Punjab. The schism was now firmly out in public view and discourse, whether it was criticism of like-minded benches or judicial appointments of Supreme Court judges.

The unexpected release of a recording in July 2022 of a meeting of the Judicial Commission of Pakistan revealed the extent to which judicial comity had eroded.

2023 was equally eventful but perhaps it is best remembered for what did not happen, i.e. the constitutionally mandated elections which, despite interventions of the Supreme Court, were not held until February, 2024. Many reasons and excuses were given for the delays. None rang true. Two judgments of the Supreme Court in January 2024, by benches headed by Chief Justice Qazi Faez, did eventually shed some light on the matter.

The lifetime disqualification of parliamentarians for not being “sadiq and ameen” was reversed, paving the way for former Prime Minister Nawaz Sharif to contest for a National Assembly seat. The Bat Symbol judgment stripped Pakistan Tehreek-i-Insaaf of its electoral symbol and political identity weeks before the General Elections. The coalition of the willing was now ready to sweep to power.

However, the numbers in Parliament fell far short of expectations and certainly nowhere near the 2/3rd majority needed for a Constitutional Amendment. An attempt to appropriate the opposition’s reserved seats was surprisingly blocked by the Supreme Court’s 13-member bench judgment in July 2024.

The schism persisted but lines of division had been redrawn. Unfortunately, it was a case of “too little too late”. The Supreme Court (Practice and Procedure) Act, 2023 was amended overnight by an Ordinance in September 2024. A re-empowered Chief Justice Qazi Faez fixed the pending review petition against the Article 63A judgment for hearing and, in October 2024, it was set aside. Votes of defecting Parliamentarians would now count for purposes of, amongst other things, Constitutional Amendments. This decision paved the way for the Twenty-Sixth Amendment to be passed by Parliament between October 20 and 21, 2024.

The game of chess was now reset, with very different rules and just in time for a new Chief Justice to be chosen.

Under the Twenty-Sixth Amendment, the senior-most judge of the Supreme Court is no longer entitled to automatic appointment as the CJP. Rather, he is to be nominated from the three senior most judges by a Special Parliamentary Committee. The Judicial Commission of Pakistan and the Parliamentary Committees have essentially been merged into one reconstituted Judicial Commission of Pakistan.

The judicial members on the Judicial Commission no longer have a majority. The role of gatekeeper has been constitutionally abolished. Each member of the Judicial Commission can now suggest names against each vacancy. With the senior-most judge no longer entitled to become CJP, the previous class systems stands abolished. Instead, now some judges get to sit in Constitutional Benches and hear cases under the Supreme Court’s original and advisory jurisdictions as well as appeals from High Court decisions involving constitutional matters while others do not.

Even the CJP, if not made part of the Constitutional Bench, would fall within the latter category. Interestingly, Constitutional Benches have no fixed tenure or composition. Their selection and term is at the whim of the reconstituted Judicial Commission of Pakistan. Provincial assemblies can extend this two-class system of Constitutional Benches and ordinary benches to their respective High Courts with a simple resolution.

The Sindh Assembly has already done so. In addition to incapacity and misconduct, Supreme Court and High Court judges can now also be removed by the Supreme Judicial Council on grounds of inefficiency.

Meanwhile, the Judicial Commission of Pakistan has been empowered to assess inefficiency of High court judges, grant them time to improve and send their case to the Supreme Judicial Council if they do not.

Numerous judicial excesses took place between 2009 and 2024. Many a time the judiciary failed to act as an independent arbiter, ignoring the Divine command inscribed in Arabic in its emblem adorning each Court room: “judge between people with truth”. Judicial activism and over-reach became the new normal. Any influence gained by the judiciary beyond its constitutional mandate was at the cost of Parliamentary supremacy and Executive autonomy.

When the opportunity finally presented itself, Parliament and the Executive struck back with a fearsome blow in the form of the Twenty-Sixth Amendment.

However, the pendulum has now swung too far in the opposite direction. To recall a time worn adage: two wrongs, after all, do not make a right. As the ghost of judicial independence gives way to the spectre of judicial servitude, only the Supreme Court, currently hearing constitutional challenges to the Twenty-Sixth Amendment, has the power to press re-set and restore balance between the Judiciary, Parliament and the Executive.

Copyright Business Recorder, 2025