Law students and law graduates in Pakistan are reporting for JURIST on events in that country impacting its legal system. Abu Bakar Khan is a recent law graduate of the University Law College, University of the Punjab, and is currently practicing in the courts of Pakistan.
On Thursday the Supreme Court of Pakistan overturned its 2022 decision on the interpretation of Article 63-A of the Constitution of Pakistan. Article 63-A deals with the disqualification of parliamentarians for defection, which says that any member of Parliament who votes or abstains from voting against instructions of their Parliamentary party on key matters may face disqualification. In its 2022 decision on a presidential reference, the Court had ruled that such defecting votes would not be counted — a judgment that was widely criticized by the legal community for overstepping the constitution and essentially rewriting the law. The Supreme Court Bar Association subsequently filed a review petition, which had remained pending for nearly two years.
The timing of the decision raises eyebrows, especially as it comes at a moment critical for the ruling government. Just last month, the government introduced a proposed constitutional amendment package, which includes the creation of a new Constitutional Court. This court would have a chief justice chosen by the Prime Minister, with other judges appointed by the President in consultation with the chief justice. Notably, the proposed retirement age for judges of this new court would be extended to 68, compared to the current 65 years for Supreme Court justices. If passed, the amendment would transfer all pending constitutional cases from the Supreme Court to the new Constitutional Court, including those related to Article 63-A.
The decision to reverse the 2022 ruling coming at the eleventh hour has significant implications for the political landscape, as it restores the ability of defecting lawmakers’ votes to be counted, a key issue that could influence the balance of power in Parliament. Legal experts argue that this could lead to increased political instability, as party loyalty may be undermined in future parliamentary votes. Additionally, the reversal raises concerns about the independence of the judiciary, as the ruling comes just as the government is attempting to push through constitutional amendments that would reshape the judiciary’s structure.
Bar associations across Pakistan have voiced strong opposition to the proposed amendments, viewing them as an attempt to curtail the powers of the current Supreme Court. Critics argue that the government, fearing the appointment of a new Chief Justice who may not align with its agenda, is seeking to establish a parallel court system with more control over key judicial outcomes. The amendments would alter Article 63-A to allow defecting votes to be counted, while only disqualifying defectors from the Parliament. Critics argue that this weakens the original purpose of the article, which was designed to curb political horse-trading and ensure loyalty to party lines
The establishment of a Federal Constitutional Court is one of the most debated elements of the proposed amendments. This court would take over the Supreme Court’s role in constitutional matters and significantly change the judiciary’s structure. Many legal experts warn that this court would concentrate too much power in the hands of the executive, especially since the Chief Justice of the new court would be appointed by the Prime Minister. Such a move would undermine the independence of the judiciary and give the ruling party considerable influence over key legal outcomes.
One of the most concerning aspects of this situation is the context and timing of the Supreme Court’s decision. The case was heard and decided just a month before the current Chief Justice’s retirement, raising questions about potential personal benefits for him under the new constitutional amendment package. The bench selected to hear the review petition also consisted of judges known to be ideologically aligned, further fueling skepticism. Justice Mansoor Ali Shah’s recusal and his letter criticizing the committee responsible for forming the bench highlighted these concerns, stating that the process itself undermined judicial integrity.
Furthermore, the proposed amendments would introduce significant changes to other areas of the Constitution. For example, a proposed change to Article 48 would grant immunity to the Prime Minister from any legal challenges regarding advice provided to the President, and another amendment to Article 239 would prevent courts from questioning any constitutional amendments passed by Parliament. Critics view these provisions as further steps to weaken checks and balances on the executive and erode judicial oversight.
In the midst of this legal chaos, it appears the government is intent on pushing through its constitutional amendments, regardless of the principles of integrity or the broader implications for democracy. The speed and secrecy behind these proposed amendments, along with attempts to reshape the judiciary, have raised serious concerns among legal experts and civil society groups..
History has a way of repeating itself, and those who stretch their reach too far often end up shooting themselves in the foot and those who manipulate the system often find themselves caught in its consequences. The stakes couldn’t be higher right now, and with these constitutional changes on the horizon, the future of Pakistan’s judiciary and its democratic system is walking a tightrope.
