Dr. Ikramul Haq
The 26th Constitutional Amendment (CA) passed by Pakistan’s Parliament is a blow to judicial independence, the rule of law, and human rights protection—International Commission of Jurists, October 21, 2024
Pakistan’s government has passed a controversial amendment to the constitution that has been accused of weakening the power and independence of the judiciary, throwing the country’s democracy into further crisis—Pakistan’s government curbs judiciary’s powers after alleged harassment of MPAs, The Guardian, October 21, 2024
Legislature is sovereign but the supremacy of Constitution of Islamic Republic of Pakistan is above everything—legislators in fact exercise delegated powers given by the people within the framework of the Constitution—Constitution Is Supreme, Friday Times, March 31, 2023
The 1973 Constitution determines jurisdiction of three pillars of the state, Legislature, Judiciary and Executive. The principle of trichotomy of powers aims at non-interference in each other’s domains, but this has been violated many a times in our history and in 50 years of the present Constitution. Supra constitutional actions and their endorsement in the past by judiciary is highly lamentable—Constitution, trichotomy & crisis, Business Recorder, April 7, 2023
The resolution of March 23, 1940 paved the way for a separate homeland for the Muslims of India after a long-drawn struggle against colonial rule. However, since independence on August 14, 1947, our state has been facing various crises and conflicts—most painful are, of course, denial of fundamental rights to the masses, frequent breaches of the supreme law of land and perpetual economic and political instability. Even after more than 78 years of independence our rulers have failed to ensure, across the board “accountability” (sic) and judicial independence, hence, it is no surprise that corruption has become a way of life for all, especially for those in power.
The successive civilian and military governments have failed to end socio-economic disparities, disharmony between the centre and provinces, poverty, apathy towards the less-privileged, militancy, religious and political intolerance—just to mention a few. What makes the situation more bizarre are the endless debates about the real motives for creation of Pakistan, witch-hunting in the name of ideology and role of men in khaki in politics.
On the 86th anniversary of Pakistan Day, unfortunately, the antagonism and confrontation between the hybrid-plus government of Pakistan Muslim League (Nawaz) and Pakistan Tehreek-e-Insaf (PTI) has taken an ugly turn. It is highly lamentable that in over fifty years of existence of Constitution of Islamic Republic of Pakistan [1973 Constitution], none of the elected prime ministers completed their full five-year term in office—courtesy unholy alliance between so-called democratic parties and the power that matter in the Land of Pure—and politicians have yet not learnt any lessons from history. They are unwilling to resolve contentious issues through political dialogue, rather prefer taking the same to higher courts.
In view of above, one can understand why since its inception, Pakistan has faced a daunting challenge of establishing true democratic polity based on constitutional supremacy, rule of law and equity. Long military rules and in between experiments of “controlled democracy” have denied Pakistanis their sovereign right of self-governance, for which many sacrificed their lives and many, their honour, to secure independence from British raj.
The dictatorial rules muzzled all the state organs—especially judiciary that became an approving arm for many unconstitutional governments. However, the defiance of March 9, 2007 was a redeeming start that culminated in the restitution of judges on March 16, 2009.
In the wake of March 16, 2009, the Supreme Court of Pakistan passed many notable judgements, especially the verdict in Asghar Khan’s case [Human rights case No. 19 of 1996 decided in 2012—reported as 2012 SCMR 2008], atoning its past, but regrettably, this decision remains unimplemented till today. The open defiance of this order and others testify to the fact that after the exit of late General Pervez Musharraf as President in August 2008, all civilian governments though claiming to be championing the cause of democracy have actually been obeying the real masters.
From 2009 to 2023, the Supreme Court took many suo muto cases under Article 184(3) of the 1973 Constitution including the elections in Punjab and Khyber Pakhtunkhwa in 90 days that was openly violated. There has always been severe criticism from many quarters, especially those in power, that judiciary has been “transgressing its constitutionally-defined limits”. In Panama case, this was the main thrust of all the three lawyers who represented the three-times elected prime minister, his family and close relative, the finance minister, dubbed as de facto premier.
The Constitution (Twenty-sixth Amendment) Act, 2024 [26th Amendment], passed in utter haste by the Parliament on October 21, 2024 and received the assent of President of Pakistan on the same day, was designed to muzzle the judiciary. Being controversial and ambiguous as regards judicial reforms , it is proving disastrous for dispensation of justice. It has elicited international and nationwide criticism mainly on the grounds of “curbing powers of judiciary”, violating “right of free and fair access to justice” and “rule of law”.
The several provisions of 26th Amendment ostensibly meant to fix the maladies faced by country’s ailing judicial system, are nothing but to ensure absolute control over state apparatus by those who matter in the land! Of late, they were worried regarding regaining “unchallenged (lost) command” over some judges of Supreme Court and High Courts. The move, marred by allegation of coercion and adductions, by a government suffering from serious legitimacy issue, is all about power, not conforming to constitutional norms and democratic principles. It will further harm and not reinforce the integrity and independence of state institutions, especially its judicial arm.
The main reason behind the move was unabated tug of war in Supreme Court related to constitution of benches and selection of cases of public importance (sic). It bewildered and baffled almost every citizen of Pakistan. Common people could not expect such a vivid division among learned men in robes. Such a divide was least expected from judges who deviated their path from those who once endorsed the late General Pervez Musharraf’s rule, going to the extent of giving him even the right to amend the Constitution.
On September 17, 2023, many thought that oath as 29th Chief Justice of Pakistan (CJP) by Justice Qazi Faez Isa marked a noteworthy shift in the country’s top judiciary. However, it proved to be yet another delusion like myth of “independence of judiciary” on restitution of judges on March 16, 2009 and then legacy of CJP Chaudhry Muhammad Iftikhar.
The predecessors of Justice Qazi Faez Isa, including, Mian Saqib Nisar, Asif Saeed Khosa,, Gulzar Ahmed, and Umar Ata Bandial, elicited widespread criticism for what many alleged “misplaced judicial activism” coupled with controversial decisions and subjective interpretations of the Constitution of Islamic Republic of Pakistan [“the Constitution”]—proving detrimental and negatively impacting judiciary’s image. Accusations of collaboration with the military establishment and decisions aligned with political agendas made their legacies controversial, and that of Justice Faez Isa, retired on October 25, 2024, as well.
In Pakistan, undoubtedly, higher judiciary’s involvement in political matters has overshadowed its responsibility to address public concerns and plight of common litigants. This imbalance is reflected in the huge backlog of cases in Supreme Court and across all judicial levels, underscoring the system’s inefficiency thus highlighting the apparent indifference towards prompt dispensation of justice for all—the main pillar of democracy.
According to many, elevation of Justice Qazi Faez Isa as CJP was a welcome departure from the alleged judicial overreach of his predecessors, but it proved to be illusion! Now Pakistani nation is optimistic that 30th CJP Mr. Justice Yahya Afridi would bring positive reforms to the judicial system by improving access to justice, quality of judges and swift dispute resolutions.
The 26th Amendment has devised a new procedure of appointments of Chief Justice of Pakistan, and judges of Supreme Court and High Courts by amending Article 175A of the Constitution—changing the composition of Judicial Commission of Pakistan by including members of Parliament having majority in any decision making process.
Subsequent to the approval of 26th Amendment on October 21, 2024, Mr. Justice Yahya Afridi, was nominated on October 22, 2024 as Pakistan’s 30th Chief Justice, bypassing two illustrious judges senior to him, Mr. Justice Syed Mansoor Ali Shah and Mr. Justice Munib Akhtar. President of Pakistan, Asif Ali Zardari, notified Mr. Justice Yahya Afridi on October 23, 2024 and he took oath of his office on October 26, 2024 for a term of three-years.
The prevalent main malady in Pakistan is the prolonged duration of legal proceedings, often spanning over decades before reaching finality. Will constitutional benches solve this chronic issue? In many cases, not concerning political matters, interpretation of any provision of the Constitution is involved. All such cases after the 26th Amendment can only be heard at Supreme Court and High Courts by benches constituted under newly-inserted Articles 191A and 202A.
Unfortunately, political polarizations in the aftermath of Panama’s case and selective accountability diluted valiant common struggle waged by all segments of society, most notably lawyers, media, social and political activists, for restoration of an independent judiciary. What a tragedy that people even after dawn of civilian era (sic) in 2009 are crying for their fundamental rights. There now prevails deadly disillusionment about “justice” promised by all the political parties in 2009. Everybody says there is a need for implementing rule of law and good governance and strict enforcement of the 1973 Constitution, as these alone can put an end to the recurrent chaotic situations in the state.
However, open and blatant interference of Executive in getting tax cases involving billions in their favour at High Courts have exposed all in the wake of 26th Amendment. Proving to be recovery arm of New East India Company, International Monetary Fund (IMF), the local gumashtas [vernacular term invented for agents of Company Bahdar], the rulers of the day are destroying whatever little faith has left of citizens in State!
Our history is marred by anti-people and autocratic rules—both military and civilian alike. Asghar Khan’s case revealed the sordid events—how the de facto mighty rulers tried to ignore and distort people’s mandate. This process continues and reaffirmed with the events of April 2022 and development thereafter. It remains the major factor behind collective failure to establish a democratic polity, notwithstanding “open announcement” that military is now “neutral”.Not only the unabated interference in politics by men in khaki, but also the role of judiciary in validating their coups d’états and extraconstitutional acts is equally deplorable in our history. Like all other institutions, judiciary in the post-independence period, suffered due to weak democratic traditions, fights between economic vested interests, rivalry of influential politicians and bitter power struggle between the landowner cliques and civil-military bureaucracy.
In Asghar Khan’s case, Supreme Court identified faces responsible for undermining the political system but absolved the institution saying these were their “individual acts”. It was admitted that huge money was released by a bank for political purposes. Later, the Federal Investigation Agency (FIA) reported, “nothing was proved”! This case exposed the very fragility of a system where rule of law had been and is still flouted with impunity. The review petition of the main accused and order to FIA to continue investigation in April 2019 are no more of interest to anyone—not even to the so-called vibrant media.
As “press and nation rise and fall together”, the same is true for judiciary. Of course, no organ of the State works in isolation from socio-economic-political conditions, but it is also a fact that present-day Supreme Court is again faced with a historic challenge to prove those who adjudge others have nothing to hide. Accountability must start from the highest adjudicators and claimants of defending ideological frontiers of the only Islamic country with nukes and missiles. They should come forward voluntarily and declare true incomes/assets/liabilities of self, spouses and dependents. Once higher judiciary becomes transparent by truthful voluntary declarations, the mighty men in khaki and mufti will have to follow suit to prove by their actions, not by words, the supremacy of 1973 Constitution.
In the wake of March 16, 2009, the nation was genuinely enthusiastic about dispensation of justice. All were expecting establishment of representative democracy and effective accountability, but instead they witnessed mounting tension between different organs of the State. Administration and dispensation of justice in Pakistan and establishment of bona fide democratic system till today remain a distant dream. In the wake of decisions, Chief Justice of Pakistan Mr. Iftikhar Muhammad Chaudhry v President of Pakistan PLD 2010 SC 61 and Dr. Mobashir Hassan & Others v Federation of Pakistan & Others PLD 2010 SC 1, the hope for rule of law, social justice and economic equality did temporarily emerge, but was ruthlessly throttled by the ruling elites and those heading the judiciary.
On March 23, 2025 [86th Pakistan Day], we as a nation must resolve for supremacy of the 1973 Constitution and strict adherence to rule of law. If no action is taken against violators of laws of the land, especially the supreme law of land, no matter to which political party or institution they belong to, then what is the meaning of supremacy of Constitution and democratic dispensation?
It is time that all pro-people forces and masses en bloc revive the resolve of founders of Pakistan for establishing a true democratic rule, egalitarian society and accountability of all, not selective of politicians when in opposition or someone being defiant to those who claim to be so-called defenders of Nazaria-i-Pakistan (Pakistan ideology) and their cronies. They (ab)use ideology and religion to deprive the people of their inalienable right of self-governance and prosperity. The process of accountability should be for all, not of politicians alone, must be strictly as per law and across the board, fulfilling all requirements of Article 10A of the 1973 Constitution.
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Dr. Ikramul Haq, Advocate Supreme Court, specializes in constitutional, corporate, media, and cyber laws, ML/CFT, IT, intellectual property, arbitration, and international taxation. He studied journalism, English literature, and law. He holds an LLD in tax law with a specialization in transfer pricing. He was a full-time journalist from 1979 to 1984 with Viewpoint and Dawn. He served Civil Services of Pakistan from 1984 to 1996. He established Huzaima & Ikram in 1996 and is presently its chief partner.
He is the Chief Editor of Taxation. He is the country editor and correspondent of the International Bureau of Fiscal Documentation (IBFD) and a member of the International Fiscal Association (IFA). He is a Visiting Faculty at the Lahore University of Management Sciences (LUMS) and member Advisory Board and a Visiting Senior Fellow of the Pakistan Institute of Development Economics (PIDE).
He has co-authored with Huzaima Bukhari many books that include Tax Reforms in Pakistan: Historic & Critical Review, Towards Flat, Low-rate, Broad and Predictable Taxes (Revised & Expanded Edition, Pakistan: Enigma of Taxation, Towards Flat, Low-rate, Broad and Predictable Taxes (revised/enlarged edition of December 2020), Law & Practice of Income Tax, Law, Practice of Sales Tax, Law and Practice of Corporate Law, Law & Practice of Federal Excise, Law & Practice of Sales Tax on Services, Federal Tax Laws of Pakistan, Provincial Tax Laws, Practical Handbook of Income Tax, Tax Laws of Pakistan, Principles of Income Tax with Glossary and Master Tax Guide, Income Tax Digest 1886-2011 (with judicial analysis).
He is the author of Commentary on Avoidance of Double Taxation Agreements, Pakistan: From Hash to Heroin, and its sequel Pakistan: Drug-trap to Debt-trap and Practical Handbook of Income Tax. Two books of poetry are Phull Kikkaran De (Punjabi 2023) and Nai Ufaq (Urdu 1979 with Siraj Munir and Shahid Jamal). He regularly writes columns for many Pakistani newspapers and international journals and has contributed over 2500 articles on a variety of issues of public interest, printed in various journals, magazines, and newspapers at home and abroad.