Concerns with the 27th constitutional amendment
The federal government has not yet officially advanced the 27th Constitutional Amendment, but unhappiness and disagreement have emerged within the legal community as the Supreme Court continues hearings on review petitions against the July 12 order regarding reserved seats.
Tensions intensified when Islamabad High Bar Association (IHCBA) President Wajid Gilani expressed support for the proposed amendment, deeming it a chance for essential “structural reforms” in the superior judiciary.
The Karachi Bar Association (KBA) responded by denouncing Gilani’s position and cautioning that attorneys from Sindh would “vigorously oppose, by any means necessary, any effort to reinstate martial law and enforce this judicial one-unit scheme upon the federation of Pakistan.”
‘Post-constitutional regime’
Former supplementary attorney general Tariq Mahmood Khokhar noted that the initial draft of the 26th Amendment had been substantially altered under pressure.
Due to objections, much to the dismay of the Established Order, several of its amending sections were omitted from the final text. “However, they were not forsaken as a futile endeavor,” Khokhar stated.
He contended that the present political environment is “favorable” for reinstating those previously excluded sections via the 27th Amendment.
Success in warfare can be alluring. Opposition is generally a formidable endeavor in Pakistan. More than ever before. Moreover, regulated institutions, devoid of public legitimacy, unrepresentative legislatures and executives, mainstream media, and the legal profession are competing for partnership.
Khokhar cautioned that these inactive clauses may resurface effortlessly, stating that the 26th Amendment has already thrust Pakistan into a “post-constitutional order”.
The proposed 27th Amendment will officially supplant the already weakened rule of law with rule by law, wherein law serves as a mechanism of control. He stated to anticipate the reestablishment of military courts, a federal constitutional court, an overhauled judicial commission, redefined provincial authorities, a weakened judiciary, a restriction of fundamental rights, the marginalization of constitutional institutions, an authoritarian presidential system, and additional changes.
“The ultimate tragic irony is that the intended victims are, with few honorable exceptions, complicit in and defenders of violations against the constitution and democracy,” Khokhar cautioned.
Simultaneously, attorneys have commenced inquiries regarding the delay of the constitutional benches committee, chaired by Justice Aminuddin Khan and including Justices Jamal Khan Mandokhail and Muhammad Ali Mazhar, in scheduling hearings on petitions challenging the 26th Constitutional Amendment, while it expedites proceedings on the reserved seats case—an issue considered vital for the ruling coalition to attain a two-thirds majority in Parliament.
Observers indicate that the constitutional bench is intent on expediting the resolution of the reserved seats case without postponement. Concerns are emerging regarding whether this urgency jeopardizes judicial independence, a crucial aspect of the Constitution.
The establishment of the constitutional bench is currently under examination. A segment of the legal community contends that beneficiaries of the 26th Amendment are reluctant to address its legal challenges.
In 2015, a majority of Supreme Court judges, in the pivotal 21st Constitutional Amendment case, determined that the parliamentary form of government is an essential aspect of the Constitution and cannot be altered through constitutional amendment.
Justice (retd) Sheikh Azmat Saeed composed the ruling, which received endorsement from eight judges.
According to the verdict, the constitution contains a scheme that reflects its salient features.
To identify such conspicuous elements, one cannot reliably depend on material external to the Constitution. The prominent characteristics are discernible from the Constitution, including democracy, the parliamentary system of governance, and judicial independence,” the court stated.
It additionally asserted that Parliament’s authority to modify the Constitution was constrained by implicit constraints. According to Articles 238 and 239, Parliament may amend the Constitution, provided that the fundamental elements are not abolished, annulled, or significantly amended.
The judgment also affirmed that the apex court is vested with jurisdiction to interpret the Constitution and to determine whether any constitutional amendment violates its defining features.
While the majority judgment remains in force, legal circles maintain that there was still a pressing need for the top court to examine the validity of the 26th Constitutional Amendment.
They caution that further delay in adjudication could open the door for additional constitutional amendments, potentially threatening the Constitution’s foundational principles.
Meanwhile, in its strongly worded statement, the Karachi Bar Association expressed dismay over IHCBA President Gilani’s public endorsement of an amendment “as yet unknown to the nation at large”.
“The lawyers and the people of Pakistan expect Bar Associations and Bar Councils to be independent voices. They must not act as proxies on behalf of the Government and be used to throw out feelers on the Government’s behalf and declare support and rubber-stamp constitutional amendments that are yet to even see the light of day.”
The KBA argued that making such statements while the legal community continues to grapple with the consequences of the 26th Amendment, which has not only been rejected by the legal community at large but is also sub judice, was “entirely unwarranted”.
“If indeed there is any such Amendment on the anvil and the Government has seen fit to secretly share its contents with the IHCBA President; he should share the same with his actual constituents – which is the legal community.”
“The news is also being spread that such Amendment will include a requirement of fresh oath for superior court judges. This is a transparent attempt to intimidate the few judges left who are yet to surrender their conscience at the feet of the government. It is identical to the PCO oaths invented by General Zia and General Musharraf for this very purpose and any civilian and legal/judicial collaborators in this martial-law exercise shall surely be remembered in the same terms as Sharifuddin Pirzada and Abdul Hameed Dogar,” the statement further read.
“In any event, to the extent the learned IHCBA President has announced support for constitutional amendments that would allow High Court and Lower Court judges from Islamabad to be transferred and posted in the different provinces (with or without their consent); the Karachi Bar Association considers this not only an attack on judicial independence but an attack on federalism and the autonomy and independence of provincial judiciaries.”
“Let there be no doubt, the lawyers of Sindh strongly reject and shall resist, by any means necessary, any attempt to reintroduce martial-law and impose this judicial One-Unit scheme upon the Federation of Pakistan,” the association warned.
