Assault on the Constitution? Legal fraternity voice reservations with ‘Constitutional Package’

The proposed ‘Constitutional Package’ — a series of constitutional amendments that, among other things, aim to fix the Chief Justice of Pakistan’s tenure for three years — has become contentious even before being tabled in Parliament for debate. While the treasury benches appeared fixated on having the bill passed through both houses of Parliament on Sunday, it failed to achieve the magic number and the sessions ultimately had to be adjourned to allow the government and its allies to regroup and come up with an alternative strategy.

The opposition, which primarily comprises the PTI, has termed the proposed bill illegal, with PTI Chairman Barrister Gohar Ali Khan saying that since there was no cabinet meeting to approve the bill, it could not legally be presented in the National Assembly. Other opposition parties have also alleged the use of ‘strong-arm tactics’ against its lawmakers to pressure them into voting for the proposed amendments.

More recently, the legal fraternity seems to have jumped into the fray too, with senior lawyers calling upon CJP Qazi Faez Isa to stay away from the controversy.

But while these statements were making the rounds on mainstream and social media, there wasn’t much clarity on the topic, given that the government had not shared the proposed bill, even with the lawmakers it was trying to woo. A copy of the draft only came into the public domain on Monday, which seems to have elicited a strong response from the legal fraternity, almost 200 of whom have signed off on an open letter warning against any such move.

Lawyers pen open letter

The letter, undersigned by practising lawyers of the apex court and other high courts, cites concerns over potential violations of judicial independence and constitutional principles, declaring that:

“We, the undersigned, are members of the legal fraternity who are committed to upholding the Constitution of Pakistan and the rule of law.

“In view of the unprecedented proposed assault on the Constitution, the Supreme Court, and the High Courts in the form of a purported ‘judicial package,’ we do not accept this violation of the Constitution and the independence of the judiciary — proposed by a parliament that lacks the people’s mandate.”

The letter goes on to state that the proposal to allow the transfer of high court judges from one province to another was a mala fide attempt to further subvert not only judicial independence but also provincial autonomy. “The judiciary is the custodian of the Constitution, and cannot be dealt with at par with the bureaucracy — which is subservient to the executive,” it reads.

“In light of the above, and in furtherance of the letter of the Islamabad High Court Judges dated 25 March 2024, we recognise Justice Syed Mansoor Ali Shah as Chief Justice of Pakistan as of 26 October 2024, the day on which Chief Justice Qazi Faez Isa shall stand retired in the eyes of the law. We recognise no so-called ‘Federal Constitutional Court,’ shall not appear or assist before it, and shall stand against its subversion of the Constitution of Pakistan and against the curtailment of the High Courts’ jurisdiction.”

So why have these proposed amendments evoked such a strong response? We asked lawyers to explain.

‘Assault on the Constitution’

“This chief justice will retire on the 26th of October; no extension will be valid in the eyes of the law, especially one imposed by a rump assembly without the people’s mandate,” said Barrister Asad Rahim Khan. “There can be no acceptance of this assault on the Constitution, nor any recognition of a so-called federal court intended to destroy the independence of the judiciary.”

He added that the proposed amendment would ruin the high court’s jurisdiction, “expose judges to being transferred from province to province as punishment, and virtually disembowel the Supreme Court”.

“It cannot proceed,” he stressed.

‘Muzzling dissenting voices’

Lawyer Mirza Moiz Baig termed the proposed amendments “a flagrant attempt to encroach on the judiciary’s independence, emasculate judges who unruffle the executive’s feathers, and muzzle all dissenting voices”.

“The Amendment to Article 17 of the Constitution, for instance, appears to be designed to realise the government’s previously announced plans to ban the PTI,” he explained. “Similarly, while the Supreme Court’s interpretation of Article 63-A — which sets out the grounds for the disqualification of members of Parliament — in Supreme Court Bar Association’s case raised concerns about the court’s fidelity (or lack thereof) with the text of the Constitution, the amendment in Article 63-A at a time when the government attempts to conjure a majority by relying on other parties engenders concerns about the government’s malice.”

“These amendments coupled with the creation of a Federal Constitutional Court comprising judges selected by the executive run amok the salient features of the Constitution.”

‘Strike at the heart of judicial independence’

For lawyer Rida Hosain, the answer is simple: “The proposed amendments destroy the salient features of our Constitution. The amendments strike at the heart of judicial independence, access to justice, and fundamental rights.”

According to Hosain, the proposed amendments would effectively make the Supreme Court (the highest court of our land) subservient to a federal constitutional court, whose first chief justice would be appointed by the President on the prime minister’s advice. “A chief justice that is hand-picked by the prime minister cannot be called independent by any stretch of the imagination.”

Hosain added that one of the amendments gives cover to certain laws relating to the armed forces. “The amendment states that laws relating to the appointment, extension, retirement, and removal of the service chiefs (including the COAS) cannot be altered except by way of a constitutional amendment. This gives constitutional protection to ordinary legislation.”

To sum, said Hosain, “the amendments weaken an independent judiciary, and give constitutional cover to laws relating to the armed forces”.

‘Democratic deficit’

Lawyer Abdul Moiz Jaferii asserts that any constitutional amendment affecting the automatic appointment of the senior most judge as chief justice of the Supreme Court will be a direct attack upon judicial independence.

“Any attempt to increase the age of retirement of superior court judges; unless made effective from the next fresh appointment to the high courts or the Supreme Court; shall also be an indirect attempt to effect judicial independence.”

Jaferii added that any attempt at tallying the voting upon a constitutional amendment in disregard of the SC judgment on reserved seats as well as the decision on the ECP clarification application announced on September 14 would be in contempt of court.

“The Supreme Court Practice and Procedure Act 2023 already provides for no less than a five-member bench to hear matters concerning constitutional interpretation,” he emphasised, adding that any further legislation in this regard would be superfluous.

According to him, a government which finds its majority resting upon judicial determinations yet to be made in matters pending in the Supreme Court as well as before election tribunals, such an opaque and hurried attempt at amending the constitution reeks of democratic deficit.

“We are ruled by a constitutional scheme where there is an obligation to obey pronouncements of the Supreme Court. There can be no higher command within our legal scheme. The consequences of disobeying such commands as well as the oaths of office that stem therefrom are laid out in the constitution itself.”

‘Not a bad thing’

Lawyers Yasir Hamdani, meanwhile, had a different outlook towards the issue. “While the whole matter seems tainted by controversy due to the surrounding politics, the creation of a Federal Constitutional Court in itself is not a bad thing,” he argued. “It has been a longstanding demand of many constitutional scholars.”

According to Hamdani, the new federal constitutional court “would be a democratic institution, marking a departure from the current process of appointments to the high courts and the supreme court”.

“It would also allow for the appointment of recognised constitutional scholars and jurists based on merit,” he said, adding, however, that a lot would depend on those making the choice.

“Ultimately, all this is being done in the name of political expediency which is why there is resistance. Also important is the change to Article 63-A which now provides for the votes of dissident members to be counted. This brings some amount of clarity to the fate of the votes that are cast against party discipline.”

‘Judicial agenda, not judicial package’

Not many seemed to agree with Hamdani’s assessment though. Lawyer Basil Nabi Malik, for instance, termed the proposed amendments “a blatant attempt to subdue an institution which is showing signs of resistance”.

“The unnecessary creation of a ‘constitutional court’ for purposes of keeping unruly and non-conforming judges in check, clipping the powers of the existing supreme court, curtailing the powers of judicial review of the high courts vis a vis national security agencies, and allowing for the transfer of judges between high courts, all point towards a ‘judicial agenda’ as opposed to a ‘judicial package’,” he said.

“The amendments, if passed, shall hit at the very core of judicial independence, and may render any semblance of an impartial judiciary a thing of the past.”

‘A rewrite of the Constitution’

Lawyer Zainab Shahid concurred. “The key question is why these constitutional amendments have been proposed at this time and backed as they are by absolute state repression,” she said.

According to Shahid, the proposed amendments are a way to “completely decimate the independence of the Supreme Court and prevent the ascension of Justice Mansoor Ali Shah as the next CJP”.

“To achieve this outcome, a federal constitutional court is being superimposed on top of the existing supreme court, consisting of a chief justice and judges hand-picked by the executive, and the Supreme Court of Pakistan is to become a toothless appellate court. Such a supreme court would be even less consequential and independent an organ of the state than the current high courts, since its chief justice would be selected by the executive branch.”

“The constitutional amendments,” said Shahid, “are essentially a complete rewriting of the Constitution of Pakistan and the institutional framework of the state.”

She added that “no Pakistani of good conscience could stand by and allow such an undemocratic assault on the state by parliamentarians who claim to have ‘received’ the draft amendments just 24 hours ago”.