The 26th Constitutional Amendment has reversed the independence of the judiciary by 20 years, former Supreme Court Bar Association (SCBA) president Muneer A. Malik said on Monday.
“I don’t think it [26th Constitutional Amendment] has increased judiciary independence. I think we have gone back 20 years,” he said while appearing on the Spotlight with Munizae Jahangir which was aired on Aaj News.
A prominent Supreme Court lawyer and former attorney general for Pakistan, Malik led the lawyers’ movement advocating for judicial independence following the deposition of Justice Chaudhry by former president retired General Pervez Musharraf on March 9, 2007.
He was also part of the legal team representing the chief justice in the SC, where they fought to restore him to his position.
The government narrowly passed constitutional amendments on Monday giving lawmakers more power to appoint top judges, who have issued a series of recent decisions favouring opposition chief Imran Khan.
“I think this bill is overkill and brought the judiciary under the executive,” Malik said and agreed with the perception that appointment process has to be reformed.
Key changes to the law include the removal of the SC’s suo motu powers, the establishment of a three-year term for the CJP, and the authority granted to the prime minister to appoint the next CJP from the three most senior judges of the apex court.
The former AGP was of the view that the Judicial Commission of Pakistan, which appoints judges, would have the highest number of members from the government of the day.
He added that the government should have set tenure for the constitutional benches as it set a three-year term for the CJP. “There may be a temptation to yield to the executive.”
According to Malik, there would always be competition among three senior-most judges who “ingratiate themselves with the prospective parliamentary commission.” Moreover, he called for criteria to appoint judges for the constitutional bench
When asked, he said that the five senior most judges are part of the constitutional bench in India.
“There will be a race within the SC. Instead of ending divisions within the court, there will be more interpersonal divisions,” he said, “I think it is a sad day in the struggle for the independence of the judiciary.”
The former SCBA president agreed with the need for ending the judiciary’s role of being politicised. But he said that a step in that regard was taken with the Supreme Court Practice and Procedure Act.
Earlier in the day, Justice Mansoor Ali Shah remarked that the question of jurisdiction would “arise every day” in the Supreme Court (SC) following legislation on constitutional benches. He said it while hearing a case related to the Competition Commission of Pakistan.
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Malik agreed with such a concern, saying that apart from Article 184(3) of the Constitution, the cases from Article 199 (jurisdiction of high court), 60 per cent of the constitutional petitions have fundamental rights issues. Then, he added that the interpretation of the case would be discussed.
The text of Article 184 (3) stipulates that for the court to have original jurisdiction on an issue, it first needs to be of public importance. Secondly, that issue must involve a violation of fundamental rights that are enshrined within the first chapter of the second part of the Pakistani Constitution.
“So I think it will be a problem as the constitutional bench will be limited to this and the second benches of the Supreme Court will have a different view. I think it will be a new hurdle to the best objective for swift and speedy justice,” he said.
