The legal fraternity is up in arms again. Protests, clashes with the police and high-pitched rhetoric about “judicial independence” have combined to create the perfect ingredients for ‘Lawyers’ Movement 2.0’. The slogans are familiar, and the same chest-thumping defiance was on display, this time over the recently passed 26th Constitutional Amendment and the subsequent Judicial Commission of Pakistan (JCP) meeting for judges’ appointment.
However, while this may seem like a repeat of the 2007 events, it is not. Pakistan’s judicial history has its share of complexities. Still, cries of “interference” and “politicization” seem to erupt whenever there is an attempt to introduce accountability in the system.
What the protesting voices fail to acknowledge is that independence does not mean immunity. Institutions cannot claim absolute autonomy in a democracy. The judiciary, like every other institution, derives its legitimacy from the people and exists to serve them. It cannot operate in isolation. And yet, we are told that judicial independence is under attack... that giving elected representatives a say in appointments means “politicization”.
Nevertheless, these voices conveniently ignore the fact that the 18th and 19th Amendments already introduced parliamentary involvement in judicial selections, yet judicial independence remained intact. The same people who accepted those changes without protest now oppose the 26th Constitutional Amendment, raising questions about their true concerns. If previous reforms did not undermine the judiciary, why would this one?
Around the world, judicial appointments are handled the same way. In the United States, the president forwards Supreme Court nominations to the Senate for confirmation. Similarly, the United Kingdom also has a Judicial Appointments Commission, which includes non-judicial members. From Germany to France, South Africa to Egypt, Turkey to Russia, and Saudi Arabia to Japan, the direct involvement of the executive and/or the legislature is present. Even India, despite its powerful collegium system, has faced intense public debate about the need for greater oversight.
Unlike in these countries, where reforms are debated in legislatures, in Pakistan, even a whisper of reform leads to street protests, with black coats clashing with the police. From a historical perspective, concerns about “encroachments” on judicial independence are valid. However, a closer examination shows that these reforms are not only timely but essential for the evolution of democratic institutions.
A cornerstone of the 26th Amendment is the restructuring of the Judicial Commission of Pakistan (JCP). With lawmakers from both Houses joining the process, the JCP now better represents the diverse voices of society.
Many critics of the amendment benefited from the previous system, so they refuse to admit its flaws
Another “controversial” change is the new process of appointing the chief justice of Pakistan (CJP). Critics strongly oppose the fact that the country’s top judge will now be selected by a special parliamentary committee. It is safe to say that this approach mitigates the rigidity of the seniority principle. Instead, the process now gains a layer of accountability.
Although some concerns regarding the recent changes are real, opposition to the new process is not entirely noble.
Many critics of the amendment benefited from the previous system, so they refuse to admit its flaws. Saner minds, however, recognize the necessity of accountability mechanisms within the judiciary. The judiciary was and still is independent. The current reforms aim not at undermining but at refining this independence and balancing it with accountability.
