Political parties in the opposition and some sections of the lawyer’s community while rejecting the establishment of constitutional court and other reforms in the judiciary are vociferous in spreading the narrative that the step has undermined the independence of judiciary. They are terribly wrong as their criticism is politically motivated rather than an honest appraisal of the 27th Amendment. In view of the extreme political polarization, that reaction is not surprising.
A constitutional court is not something out of this world. Many countries have separate constitutional courts alongside their supreme courts, particularly in Europe and Latin America. Examples include Germany, Italy, Spain, Chile, Colombia, and South Korea, each with distinct courts that interpret their national constitutions. It simply means bifurcation of the judicial responsibilities between the Supreme Court and the Constitutional Court without any bar on their independence.
The reforms in the judiciary were long overdue in view of the pendency of thousands of cases in the Supreme Court for years. The establishment of the constitutional court has not only been demanded ny the legal community for the last two decades but also one of the priorities in the Charter of Democracy signed between the two major political parties. As is evident the idea has been discussed in political and legal circles for a long time. Parliame,nt, which represents the collective will, has justifiably given this thinking a constitutional and legal status under Article 239(5-6). This thinking developed over the years due to the activism exhibited by the judiciary through its invention of doctrine of necessity and a string of verdicts in violation of the Constitution itself which they were supposed to protect.
The dismissal of the Nawaz Sharif government in 2017 on flimsy grounds which were not even prayed by the petitioners and blatant attempt to rewrite the Constitution while expressing opinion on Article 63A are classic examples of judicial activism that had undermined governance and promoted political instability in the country. This left no choice for the Parliament but to bring about the much needed reforms and bifurcation of the judiciary to ensure quick justice and check judicial activism.
The Pakistan Bar Council and Supreme Court Bar Association in a joint statement have supported the establishment of the Constitutional Court through the 27th Amendment maintaining that it would strengthen the Federation. The statement said that it has been their demand for establishment of the constitutional court with equal representation from the provinces for the last two decades for hearing constitutional and political matters while the Supreme Court dealt with cases involving the general public to ensure quick justice.
Five judges of the IHC also collectively filed petitions against transfer of judges from one High Court to another, which were dismissed by the Supreme Court. However they filed appeals against it in the Federal Constitutional Court which reportedly have also been rejected. It is pertinent to mention that Article 200 empowers the President to transfer judges from one court to another. The Judges knew it well but they tried to create fuss by lodging appeals. That they did so collectively represents trade unionism. The reaction by superior-court judges adds to the justification for judicial reforms.
The statement noted with regret that certain political factions within the legal community were attempting to create division amongst the lawyers’ community to achieve their ulterior political motives and to advance their political agenda. It further reiterated “ They often issue statements aimed at sabotaging the democratic system of the country. We strongly reject and condemn such statements issued by non-elected people and assure that their futile exercise would soon be rendered ineffective. We want to make it explicitly clear that the Pakistan Bar Council and Supreme Court Bar Association, as the apex bodies of legal fraternity, are the only entities supposed to issue statements on behalf of the institutions on national issues. The other ‘so-called’ statements do not represent or reflect the stance of the Pakistan Bar Council, Supreme Court Bar Association or the entire legal community.”
Some judges have also tendered their resignations in protest against the 27th Amendment which is tantamount to defiance of the Constitution, and descends into the realm of misconduct in the light of the code of conducted for judges issued by the Supreme Judicial Council as well as confirms the general perception about their sympathies for a particular political party. They also exhibited extreme judicial activism by releasing to the media letters in which they expressed their opinions to the Chief Justice. They also attended public functions and made speeches of political nature; conduct unbecoming of judges of the apex court.
Five judges of the IHC also collectively filed petitions against transfer of judges from one High Court to another, which were dismissed by the Supreme Court. However they filed appeals against it in the Federal Constitutional Court which reportedly have also been rejected. It is pertinent to mention that Article 200 empowers the President to transfer judges from one court to another. The Judges knew it well but they tried to create fuss by lodging appeals. That they did so collectively represents trade unionism. The reaction by superior-court judges adds to the justification for judicial reforms.
