Under the 27th Amendment to the Constitution, there will be fundamental changes in the judicial system. After this amendment, the Federal Constitutional Court will be established which will deal with the interpretation of the Constitution. The Supreme Court will decide other cases. The decisions of the federal court will be enforced on all pillars of the state. Now the Judicial Commission will not appoint the Chief Justice and Judges of the Federal Constitutional Court, but the President will make these appointments on the recommendation of the Prime Minister.
Apart from the judges of the Supreme Court, lawyers who are qualified to become judges of the Supreme Court will also be eligible for the Federal Constitutional Court. Under this amendment, the federal government can transfer a High Court judge to another High Court without knowing his will and judges who do not comply with their transfer orders will be referred to the Supreme Judicial Council.
A legal expert says that all constitutional matters will now come under the purview of the Constitutional Court. Federal Law Minister Nazir Tarar says that there are many cases in the Supreme Court. A constitutional court is being established to reduce this burden. Senior lawyer Barrister Salahuddin says that it is a fact that thousands of cases are pending in the courts across the country, but the number in the Supreme Court is around 25,000 and the establishment of the Constitutional Court will not reduce the number of pending cases in the courts of the country.
Supporters of this amendment say that when Ms. Benazir Bhutto and Nawaz Sharif agreed on the Democratic Charter in 2006, this charter also included a proposal for the establishment of a Constitutional Court. Other opposition parties also agreed on this pact.
Now after 20 years, the Charter of Democracy is being implemented, then there is no room for objection on this provision, but it is not written in the Charter of Democracy that the administration will appoint the judges, then these arguments are also being given that since 1977, the effect of external pressure on the decisions of the judiciary began to be seen a lot. In 1978, Zulfiqar Ali Bhutto, the first elected Prime Minister of the country and the founder of the People’s Party, was sentenced to death under the leadership of former Chief Justice Muhammad Mushtaq of the Lahore High Court.
Later, General Zia-ul-Haq’s illegal seizure of power was declared legal. Similarly, former Chief Justice Naseem Hasan Shah provided legal justification for the dismissal of Ms. Benazir Bhutto’s government. The full bench of the Supreme Court under the leadership of former Chief Justice Irshad Hasan not only declared General Pervez Musharraf’s illegal usurpation of power legal, but also gave General Pervez Musharraf the power to amend the constitution without the request of the government lawyer. In this context, former Chief Justice Anwar ul Haq and Maulvi Mushtaq can also be referred.
Similarly, the controversial decisions of other judges to form a parallel government not only damaged democracy, but some decisions also affected the country’s economy. Some progressive lawyers must mention these Chief Justices during this period, whose decisions stabilized democracy in the country. It is also important to mention Justice AR Cornelius, Justice Kayani, Justice Darab Patel, Justice Fakhruddin Ji Ibrahim, Justice Khuda Bakhsh Marri, Justice Saeed-ul-Zaman Siddiqui, Justice Nasir Aslam Zahid, Justice Bhagwan Das and Justice Sabihuddin Ahmed during the tenure of General Zia-ul-Haq.
These judges wrote controversial decisions for the protection of human rights, the stability of democratic institutions and the protection of the oppressed classes. Justice Darab Patel and Justice Fakhruddin Ji Ibrahim had set such a priceless example of courage and bravery by refusing to take oath under General Zia-ul-Haq’s Interim Constitutional Order PCO that many later judges also followed suit and refused to obey General Pervez Musharraf’s Interim Constitutional Order, thereby restoring public confidence in the judiciary. Former Chief Justice Iftikhar Chaudhry refused to obey General Musharraf’s order.
The lawyers’ movement for their recovery laid the foundation for a new culture of resistance across the country. Justice Iftikhar Chaudhry’s behavior after his rehabilitation started to be questioned, but among his successors, some judges made many historic decisions. Former Chief Justice Tasadeq Hussain Jilani took a historic decision in 2015 to protect the rights of minorities, but the administration did not fully implement this decision.
In this way, former Chief Justice of Peshawar High Court Waqar Seth’s decision to give death sentence to General Pervez Musharraf for violating the constitution can be called a golden decision in the history of judiciary. For speedy disposal of cases, more subordinate courts should be established and courts should be mandated to dispose of cases within a specified period.
Through the 26th amendment to the Constitution, the principle of seniority for the appointment of the Chief Justice was abolished and the government got the power to make appointments at will. When the President appoints the Chief Justice and judges of the Federal Constitutional Court on the recommendation of the Federal Government, then the independence of the judiciary will become a question. The background to the involuntary transfer of judges is the resistance of five judges of the Islamabad High Court. Supreme Court’s senior-most judge Justice Mansoor Ali Shah’s letter to the Chief Justice about the establishment of the Constitutional Court is expressing the anxiety among the judges.
