A favourite pastime of Pakistani rulers would appear to be tinkering with institutions and playing with the balance of power. True to form, the 26th amendment to the 1973 Constitution, rushed through the National Assembly in an all-night session on October 21, demonstrated how a short-term obsession will have long-term consequences.
By altering the mechanism for appointing the Chief Justice of Pakistan, the amendment was designed to ensure that Justice Mansoor Ali Shah, who would have been the country’s top judge, would be superseded. Justice Shah was among those who had restored reserved seats in the National Assembly to Imran Khan’s Pakistan Tehreek-e-Insaaf (PTI). The amendment was rushed through as the incumbent Chief Justice, Qazi Faez Isa, retires on October 25.
This is precisely what transpired. After President Asif Ali Zardari signed the amendment into law, a special parliamentary committee, dominated by members of the ruling coalition, recommended Justice Yahya Afridi, the third-ranking judge in the Supreme Court, as the next Chief Justice. The Prime Minister is to formally notify the appointment.
The amendment also creates a new category of “constitution-bench judges” to be appointed by a reconstituted Judicial Commission of Pakistan, now packed with parliamentarians. The senior-most among these new judges would serve as the presiding judge. In essence, the plan appears to exclude existing Supreme Court judges from hearing “constitution matters”, as their verdicts might not align with the ruling coalition’s preferences.
A parallel Supreme Court
The amendment, already causing confusion, effectively establishes a parallel Supreme Court. Which matters will be heard by the existing Supreme Court and which by the new constitution benches remains a contentious issue.
Unlike previous instances when ruling parliamentarians or governments acted independently, the current amendment has received full backing from Army Chief Asim Munir. This alliance between the ruling Pakistan Muslim League (Nawaz) (PML-N), the Zardari-Bhutto Pakistan People’s Party (PPP), and the Army sets a new precedent in the country.
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Weakening the judiciary serves the Pakistani Army’s broader interests. Recently, judges, particularly in the Islamabad High Court, have openly complained of interference by the tri-service intelligence agency, the Inter-Services Intelligence (ISI) Directorate, widely known as Pakistan’s dirty-tricks department.
The two leading political parties, traditionally at odds with the Army, have joined forces with the all-weather Jamiat Ulema-e-Islam (F) leader Fazlur Rehman to secure an unprecedented parliamentary alliance and two-thirds majority needed to rush through the constitutional package.
‘Extraordinary level of political influence’
In a statement, the Karachi Bar Association questioned the 26th amendment to the constitution. “We see these provisions as a grave threat to the independence of the judiciary and a subversion of access to justice for all citizens,” it said.
“The independence of the judiciary is enshrined as one of the core tenets of the Constitution, and any move by the government to punish judges for holding independent views will not sit well in these fraught times. Now that it has arrogated more powers over the judiciary to itself, the government must act judiciously and with restraint. It should not stir more trouble for itself,” the Dawn newspaper said in an editorial.
The editorial expressed hope that Justice Mansoor Ali Shah, being next in seniority to Justice Isa, would be the first choice of the special parliamentary committee—a hope that has already been dashed. Just in September, a senior PPP leader had assured television channels that Justice Shah would be the next Chief Justice of Pakistan.
Bilawal Bhutto Zardari, chairman of the Pakistan People’s Party, at an election campaign rally, in Bhalwal, Pakistan, in January 2024. The spectacle of an overjoyed Bilawal Bhutto-Zardari celebrating the latest constitutional amendments that seek to weaken and manipulate the superior judiciary may well return to haunt Bhutto-Zardari. | Photo Credit: Anjum Naveed/AP
Reacting to the constitutional changes, the International Commission of Jurists (ICJ) stated that these amendments “bring an extraordinary level of political influence over the process of judicial appointments and the judiciary’s own administration”.
“They erode the judiciary’s capacity to independently and effectively function as a check against excess by other branches of the State and protect human rights,” the ICJ added.
(Amid the far-reaching changes to the system of top judicial appointments, a separate amendment establishing a “clean environment” as a fundamental right for all Pakistani citizens through the insertion of Article 9A into the Constitution has gone largely unnoticed.)
By employing Maulana Fazlur Rehman as an intermediary with the opposition PTI, and with some PTI lawmakers voting in favour of the amendments, the ruling PML-N—aided by back-room support from the Army establishment—has successfully managed to divide even Imran Khan’s party.
For years, three-time (now former) Prime Minister Nawaz Sharif has been fixated on the concept of “parliamentary supremacy”—a euphemism for executive control (specifically his, or his party’s dominance) over all other organs of governance in Pakistan.
Thrice he has been removed from power—first by an Army chief working with the then President (1993), then by an Army chief in a coup (1999), and finally by the Supreme Court (2017)—yet Nawaz Sharif remains determined to pursue his game of supremacy.
And what of the PPP? After decades of struggling against Army rule and enduring multiple jail terms, Benazir Bhutto was twice dismissed (in 1990 and 1996) by empowered Presidents acting with the Army’s blessing. Today, we witness the spectacle of an overjoyed Bilawal Bhutto-Zardari celebrating these latest constitutional amendments that seek to weaken and manipulate the superior judiciary.
The drive to control the judiciary was so evident during Nawaz Sharif’s tenure as Prime Minister. In 1997, while working as a correspondent in Pakistan, this writer witnessed PML-N supporters attack the court of Chief Justice Sajjad Ali Shah. The court was hearing a contempt petition against Sharif at the time, and the Chief Justice barely escaped physical harm. Sharif’s subsequent attempt to control the Army and its appointments led to his overthrow by Army Chief Pervez Musharraf in October 1999.
The current constitutional amendments may well return to haunt both the Sharifs and the Bhutto-Zardaris in the years ahead.
Another blow to Pakistan’s constitution
The impulse to control institutions likely originates from Pakistan’s distorted political structure, which has existed since 1947. In its quest to direct or dominate the country’s politics, the Army has deployed every available means to manipulate both the executive and judiciary. In the present scenario, the Army has merely facilitated the amendments’ passage through its good offices.
The narrative of control is so deeply rooted in Pakistan’s ruling circles—civilian politicians—that its spillover from the khakis to the civilians appears seamless. Elected leaders now believe they too should shape institutions to ensure their authority goes unchallenged.
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Yet the threat to them, even from behind bars, remains Imran Khan, who has resisted all attempts at silencing him. Love him or hate him, Khan maintains his relevance in Pakistani politics, and it would not be surprising to see him released from jail in the coming months or years following negotiations with the Army.
In the immediate future, we can expect significant uncertainty in Pakistan’s higher judiciary as it determines jurisdictional boundaries. Much will depend on the approach taken by the incoming Chief Justice Yahya Afridi.
Undermining the independence of the judiciary represents yet another blow to the country’s constitution.
Amit Baruah was The Hindu’s Islamabad-based Pakistan correspondent from 1997 to 2000. He is the author of Dateline Islamabad.
