WHEN young and in love, even a moment’s wait feels like an eternity. With age, passions cool and ardour subsides. Patience becomes a virtue, action an aberration.
Litigating in the courts of Pakistan is similarly solid preparation for the travails of old age. Fairly early in one’s career, one learns to suffer days of inaction and the art of doing nothing, while maintaining a façade of activity.
Nearly a year after the 26th Amendment was enacted, the most important constitutional case of this century has been set down for hearing – an exhausting wait, even by our uninspiring standards.
There have been many cases, and some of great importance, but none whose outcome may pose an existential threat to the independence of the judiciary, or revive it as a co-equal institution of state. Indeed, the outcome will determine our constitutional landscape for the foreseeable future.
Through JCP, govt is party to the composition and tenure of every constitutional bench; while simultaneously being a party in every case before these same benches. This is sufficient to impact the confidence of the ordinary litigant in the independence of the judiciary
The petitions raise many issues; and others will inevitably arise. These will include the appointment of judges, including chief justices of high courts and the chief justice of Pakistan; the composition of the Judicial Commission of Pakistan (JCP); and, the propriety of lawyer-members of the JCP appearing as counsel to plead before the very judges they appoint, confirm, transfer and promote.
These, and many other such important questions, though ostensibly important, are actually peripheral. It bears reiterating that what lies at the heart of the matter is the survival of the judiciary as an institution, independent of the government. Pivotal in this is the role assigned to the Constitutional Benches – Article 191A envisages that there can be more than one.
It is beyond debate that after the 26th Amendment, these are the most important benches in the Supreme Court. These benches – to the exclusion of all other judges, including the chief justice of Pakistan – have the exclusive jurisdiction to decide all appeals from every high court, challenging the constitutionality of a law, or raising any substantial question of law regarding the interpretation of the Constitution. Every plea of a citizen for the enforcement of his fundamental rights, and every action to prevent overreach of the leviathan is within their domain.
Every case originating in the Supreme Court, references by the president on critical legal and constitutional matters for the court’s advisory opinion, disputes between provinces, or between one or more provinces and the Federation, can be adjudicated only by them.
The chief justice of Pakistan is still the titular head of the judiciary. But in the adjudication of all matters of critical national and constitutional importance – which impact the state and affect the nation – he has no say. He is a mere bystander; sadly irrelevant both to the process and to the determination which follows. In the words of Matthew Arnold, “a beautiful and ineffectual angel, beating in the void his luminous wings in vain”.
Of even greater significance than the marginalisation of the chief justice is the independence of these benches. Security of tenure is one of the main pillars of judicial independence, but the amendment takes a wrecking ball to it. The benches comprise “such Judges of the Supreme Court and for such term as may be nominated and determined by” the JCP.
The judges of the Supreme Court are appointed till they reach the age of 65, or are removed on the recommendation of their peers.
The roster (assignment of cases) has always been an exclusively judicial preserve. After judges have started hearing a case, even the chief justice, once considered the ‘master of the roster’, had no authority to reassign that case to another bench. Any executive or legislative interference in such matters being an infringement of the doctrine of separation of powers, is incontestably unconstitutional.
The JCP, a majority of whose members are not judges of the Supreme Court, can however change the composition of the bench at will. There is nothing to prevent it from doing so mid-hearing.
In the hierarchy of our courts, a civil judge stands at the lowest rung of the judicial ladder. But even he cannot be so shunted around. This is a bird’s eye view of the impact of the 26th amendment on the independence of the bench.
Now for a worm’s eye view: the government is a party to every decision of the JCP regarding the composition and tenure of the constitutional benches. The government is also a party in every case before these benches.
This is sufficient to impact the confidence of the ordinary litigant in the independence of the judiciary. Erosion of trust in the impartiality of judges will follow. When that happens, institutional rigor mortis will set in.
The writer is a senior advocate of the Supreme Court
Published in Dawn, October 6th, 2025
