Supreme Court. PHOTO: FILE
ISLAMABAD:
The fate of Pakistan’s top 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 respond collectively to the existential threat to judicial independence.
Under the proposed amendment, the Supreme Court would be placed under a newly established Federal Constitutional Court (FCC), its rulings bound by the latter’s jurisprudence. The FCC’s first chief judge would be appointed by the executive, a move critics warn risks undermining the separation of powers.
Observers have described the development as possibly “the last week of the present apex court”, noting that the amendment even seeks to drop “Pakistan” from the SC’s name and from the chief justice’s title after the reform takes effect.
The government, meanwhile, seems intent on passing the bill within days.
Chief Justice Yahya Afridi is scheduled to leave for Turkey on November 12, after which senior-most Justice Syed Mansoor Ali Shah is to serve as acting CJP. Yet if the 27th Amendment becomes law, the government could instead handpick any Supreme Court judge for the position.
As the new week begins, all eyes are on the SC and on how its judges will respond to the government’s controversial amendment. Monday marks the first working day since the bill’s tabling in Parliament, and expectations of a reaction are running high.
Lawyers predict that the court may soon break its silence, either through an institutional stance or through individual judges voicing dissent against the proposed changes.
Legal experts are urging the judiciary to stand united in defence of its independence — a cornerstone of the Constitution — and have called on CJ Afridi to convene a full court meeting before the bill moves any further.
The SC may also ask the Attorney General of Pakistan to share the draft of the 27th Constitutional Amendment Bill for examination, amid serious apprehensions that the independence of the judiciary is under threat.
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 will appoint the first FCC chief justice from among the current SC judges.
Under the proposed 27th Amendment, the executive would appoint the first chief justice of the newly created FCC from among current SC judges, a provision that critics see as striking at the heart of judicial autonomy.
The government has yet to justify why a new apex court is needed when the existing CB has already ruled in its favour on key matters over the past year. So far, no one from within the judiciary has questioned why the SC should be made subordinate to a body whose head is to be appointed by the government.
Even the ruling parties’ legal experts are not advising their political leadership on the legitimacy of a court whose head is appointed by the executive. Similarly, Supreme Court judges who may be candidates for appointment to the FCC must recognise the serious doubts surrounding the legitimacy of the present Parliament.
A major challenge will be how the new FCC dispels the perception that it functions under the influence of the current regime.
There are two schools of thought regarding the SC judges who have been sidelined by the executive and their peers.
The first suggests that they should not remain part of the present system. Former additional attorney general Tariq Mahmood Khokhar states that “the time is ripe to resign on principle and in good conscience”.
He added that “there are precedents, though not many, when relinquishing judicial office was considered the more honourable course”.
However, another senior lawyer disagrees. “I sincerely hope no judge will act in haste or on instinct. No one should resign. Just hold and see,” he said. He added that all independent judges should not be disheartened, as “it’s not over yet”.
