Islamabad, Pakistan – Proposed constitutional amendments reportedly aimed at giving the political executive more power over the judiciary have emerged as the latest flashpoint between the government and the opposition in Pakistan.
After an intense weekend of political activity in the capital, Islamabad, Prime Minister Shehbaz Sharif’s government failed to convince the opposition to back its “Constitutional Package”, as the set of amendments is being called by the Pakistani leaders and media.
But the government insists that the proposals to alter the Constitution remain on the table.
The opposition, mainly led by jailed former Prime Minister Imran Khan’s Pakistan Tehreek-e-Insaf (PTI) party, has slammed the proposed reforms, calling them “unconstitutional” and saying that no draft of the proposed changes had been shared with them or the media.
Here’s a breakdown of the key proposals, the numbers required in parliament for their passage and why the opposition has refused to cooperate:
What are the proposed amendments?
According to statements made by the opposition parties and local media reports, the government’s package includes more than 50 proposals, most of them concerning the judiciary.
One of the key suggestions is to create a new Federal Constitutional Court alongside the Supreme Court. The Constitutional Court would handle petitions pertaining strictly to interpretations of constitutional clauses.
The proposed amendments also include raising the retirement age of judges in the proposed Constitutional Court to 68, as opposed to other judges who retire at 65. Additionally, the term of a judge serving in the Constitutional Court would not exceed three years.
Judges in other courts do not have term limits beyond the cap imposed by the retirement age.
The proposals say the chief justice of the Constitutional Court would be appointed by the president, a nominal head of state, on the recommendations of the prime minister. Appointments to the Supreme Court are currently conducted by a Judicial Commission, which looks at senior-most judges of the high court and recommends names to a parliamentary committee that must confirm them.
Another key proposal is to revise a controversial ruling by the Supreme Court in May 2022, which said that a legislator’s individual vote against their party line would not be counted. The amendments seek to overturn that by allowing legislators to defy their party line when voting in parliament.
How do the numbers stack up in parliament?
According to Pakistan’s law, constitutional amendments require a two-thirds majority in both houses of parliament.
The lower house, called the National Assembly, has 336 seats, while the Senate, the upper house, has 96. The government needs at least 224 votes in the National Assembly and 64 in the Senate to push its package.
But Sharif’s coalition government has only managed to secure 214 votes in the National Assembly, and with eight added from the Jamiat Ulema-e-Islam–Fazal (JUI-F) party – which is not part of the governing coalition – would still fall short of the 224 mark by two votes.
In the Senate, the government has 57 and needs at least seven more. Again, it would fall short even with five JUI-F senators added to its tally.
Irfan Siddiqui, a legislator from the governing coalition, played down the government’s inability to secure the votes needed to pass the amendments, suggesting that it was a matter of time before the numbers were managed.
“It may take a week or 10 days for the constitutional amendments to be presented in the parliament for approval. I don’t see any problem in it and this is not the end of the world,” he told reporters on Monday.
Are the amendments targeted against the PTI?
Both the government and the PTI are trying to win over the JUI-F legislators in this tussle.
PTI leader Sayed Zulfi Bukhari said the delay in tabling the Constitutional Package showed that the government lacked the required votes, or else it would have “rushed through” the amendments.
“They are in a hurry to pass the amendments in order to ensure that the current Chief Justice Qazi Faez Isa, who is retiring next month, should become the chief justice of the newly-proposed Constitutional Court, which would overrule all other courts,” he told Al Jazeera.
Bukhari said his party was opposed to the proposed changes, which threaten to render the judiciary “toothless” by taking away its independence.
“At the end of the day, the sole purpose behind all these constitutional changes is to somehow find a way to ban the PTI and send Imran Khan’s case to military court,” he said. In essence, the PTI argument boils down to the allegation that the government, by handpicking judges to a new court empowered with decisions on constitutional matters – including the fate of political parties – plans to strengthen its chances of judicial support for moves against the PTI and Khan.
Khan was jailed in August last year on several charges, including inciting riots in May that year which led to widespread violence and attacks on government and military buildings. Though his conviction in most cases has either been overturned or suspended, the 71-year-old cricketer-turned-politician remains in detention, despite several rights groups calling it “arbitrary”.
Moreover, a recent indication by the government and the military that Khan could now be tried in a secretive military court has further riled the PTI, which has renewed its protests to demand his immediate release.
Earlier this month, PTI lawyers filed a petition to block a move to send Khan’s case to military court for trial. However, legal experts have told Al Jazeera the existing law permits the military to apply for a civilian to be handed over to them under certain circumstances.
What do the experts say?
Some Pakistani analysts say the proposed amendments, if passed, may alter the balance of power between the executive and the judiciary.
Islamabad-based political analyst Ahmed Ijaz told Al Jazeera that amending the constitution was a “serious task” and requires careful deliberation, which, he said, was not happening in the ongoing political tussle.
“The government’s urgency has raised concerns and PTI’s stance is understandable,” he said.
Political analyst Benazir Shah also pointed to the timing of the proposals, with the incumbent chief justice due to retire next month.
“This suggests attempts to manipulate the appointment process or to block the appointments of the next chief justice. Also, if the amendments are passed, this would also dilute the powers of the Supreme Court,” Shah told Al Jazeera from Lahore.
She further said that the creation of a Constitutional Court would transfer powers traditionally held by the Supreme Court, such as banning political parties or handling cases involving federal and provincial governments.
“Interestingly, while the proposed amendments aim to curtail the powers of the Supreme Court, they appear to extend a significant exemption to the military. The amendments would [reportedly] prevent high courts from passing orders against army officers in matters of national security,” Shah said.
The military is Pakistan’s most powerful institution, and has directly ruled over the country for nearly three decades, enjoying considerable influence on civilian governments as well.
