A Trojan Horse

?A new dawn has arisen in Pakistan. But this one is a harbinger of darkness not light. The judiciary has been deemed the weakest of the three pillars, for it has neither the power of the “sword nor the purse.” Even to enforce its decisions, it looks upon the executive branch for implementation. It is the only institute that bridges the parliament/executive and the commoner. Keeping a check on the former for the liberty of the latter. This bridge stands endangered today.

“There is [can be] no liberty if the power of judgement be not separated from the legislative and executive powers.” Montesquieu got this as far back as 1748. Three Hundred years later, on 20.10.2024, our parliament, in the blatant and utter negation of the separation of powers and the absolute necessity of independence of the?judiciary, brought to light the twenty-sixth constitutional amendment.

Parliament is sovereign, not all-encompassing. Its power stands circumscribed by its constituent document. It is the constitution that is sovereign. A constitution premised on the reciprocal exchange of people relinquishing their agency in return for the orderly running of the state. This was subject to the understanding that certain inalienable truths would remain unalterable. One is that the established order shall fully secure the independence of the judiciary. This security stands compromised today. The trust reposed by the people in its representatives was?breached.

Unlike a monarchy, a republic?is delegated power for the?orderly functioning of the state. The republic is to operate within the parameters of its constitutional power and limitations. It cannot concentrate power in its own hands. In Pakistan, the republic seems to be on the path of self-aggrandizement. The parliament, against the preamble of the Constitution and in negation of the country’s constitutional status as a republic, has overreached its mandate. It has neutralized the independence of the judiciary for its exalted status.

The parliament's sole prerogative is now?to throne the Supreme Court chief. It can elect any of the three senior Judges to take on the mantle of the?judiciary. Should one out of the select and his three senior contemporaries decline, the process will continue down the chain till parliament finds the one fit to take on the reins. Not only is the process partisan, it is also effectively a blow, under an alleged constitutional cover, to the long-established seniority principle. Granted, the same has not been followed in letter and spirit, but now it stands effectively uprooted. The intrusion of parliament into judicial affairs does not end here. Parliamentarians, amongst others, would now also sit as referees over who would enter the citadel of the Supreme Court. It is anybody’s guess as to their considerations when casting their votes.

New parallel constitutional benches have also been created under the alleged auspices of the Supreme Court and the High Court. This amendment, though neat, is a sinister ploy to undermine the judiciary's only potent tool. The power of judicial review. This power allows the judiciary to keep a check on the excesses of the legislature and executive for the benefit of the?common person. That ensures political liberty and spews life in the fundamental rights enshrined in the Constitution. The Supreme Court and High Courts stand ousted from keeping guard over legislative and executive actions that abrogate fundamental rights.

Even though the amendment does not create a new constitutional court as originally envisaged, the new order is not much different from the original idea. The said constitutional benches are constituted not by the Supreme Court or the High Courts themselves but by the Judicial Commission of Pakistan. These specifically formulated constitutional benches now stand endowed with the constitutional jurisdiction of judicial review. The parliament deems it essential that these individuals be specially vetted by the Judicial Commission of Pakistan for the said purpose. That the guards meant to keep the legislature and executive in its constitutional ambit be carefully chosen with legislative involvement.? A corollary of parliaments meddling in the affairs of the judiciary translates into an even more weakened judiciary, an adulterated form of judicial review, compromised fundamental rights, and an undermined rule of law.

Via the twenty-sixth constitutional amendment, parliament has not exercised its sovereignty, it has undermined that of the constitution. It has taken a bite of the forbidden fruit, the ramifications of which will set the already derailed path of this nation in a haywire. The only winners will be the oligarchs; the polity can bid farewell to the ideals of republic, political sovereignty, and political liberty for good. Pakistan shall be a republic, but only in name.

?