1. Limiting Judicial Overreach
- Restricting Suo Motu Powers: One of the most significant proposed changes is the limitation of the Supreme Court’s suo motu powers. This would prevent the court from acting on its own initiative outside the scope of applications filed, ensuring that it only hears cases brought before it through proper legal channels.
- Benefit: This can reduce concerns about the overreach of the judiciary into executive and legislative matters, which some see as a violation of the separation of powers. By curbing suo motu powers, the judiciary may become more restrained and avoid engaging in politically charged cases unless brought forward by relevant parties.
2. Greater Transparency in Chief Justice Appointment
- CJP Appointment Process: The amendment proposes that the Chief Justice of Pakistan (CJP) be selected from among the three most senior judges by a parliamentary commission and approved by the prime minister. This replaces the automatic appointment of the senior-most judge as the CJP.
- Benefit: This adds a level of scrutiny and debate to the appointment of the CJP, potentially preventing less suitable candidates from rising to the highest judicial position based solely on seniority. It introduces democratic oversight into the process, which may lead to the appointment of a CJP who is better aligned with public expectations of transparency and accountability.
3. Performance Evaluation of Judges
- Annual Evaluations: The amendment empowers the commission to evaluate the performance of judges, setting criteria for fitness and assessments. If a judge’s performance is unsatisfactory, the commission can take steps for improvement or, if necessary, refer the matter to the Supreme Judicial Council.
- Benefit: This could ensure a higher standard of judicial performance and accountability. Judges who are not performing well may be given opportunities for improvement, ensuring that the judiciary functions more efficiently and effectively in delivering justice. It introduces an objective mechanism for evaluating judicial conduct.
4. Fixed Tenure for the Chief Justice
- Capping CJP Term at Three Years: The CJP’s tenure is limited to three years, after which they must retire, even if they have not reached the age of 65.
- Benefit: A fixed term for the CJP can prevent monopolization of power within the judiciary and allow for more frequent leadership changes, which can inject fresh perspectives into the court. This can help avoid long-term dominance by one individual and ensure more dynamic and responsive judicial leadership.
5. Preventing Political Bias in CJP Appointments
- Balanced Representation in Appointments: The special parliamentary commission will include proportional representation from various political parties, ensuring that no single party or government has unilateral control over the appointment process.
- Benefit: This can promote political neutrality in the appointment of the CJP, as decisions will require input from a range of parties rather than just the ruling government. It can reduce the risk of political bias influencing the judiciary’s leadership.
6. Constitutional Benches for Specialized Jurisprudence
- Establishment of Constitutional Benches: The amendment proposes the creation of special constitutional benches within the Supreme Court to handle constitutional matters.
- Benefit: This specialization could lead to more focused and informed adjudication of constitutional issues, ensuring that cases of national importance are handled by judges with relevant expertise. It also streamlines the court’s processes, potentially leading to faster and more consistent rulings on constitutional questions.
7. Balanced Regional Representation
- Equal Provincial Representation in Constitutional Benches: The amendment requires that, as far as practicable, the constitutional benches comprise an equal number of judges from each province.
- Benefit: This provision ensures that the judiciary’s regional representation is balanced, preventing any one province from dominating key constitutional decisions. It promotes national unity and fairness in the administration of justice.
8. Limiting Judicial Dominance over High Courts
- Transfer of Substitution Powers: The power to appoint a substitute for an unavailable Chief Justice of a High Court, previously held by the Chief Justice of Pakistan, is transferred to the parliamentary commission.
- Benefit: This change reduces the dominance of the Supreme Court, specifically the CJP, over the High Courts, allowing for a more balanced and decentralized judiciary. It prevents the concentration of too much power in the hands of the CJP.
9. Democratic Oversight
- Parliamentary Oversight of Judiciary: By involving the parliament and the executive in judicial appointments and performance evaluations, the amendment introduces an element of democratic oversight into the judiciary, which has traditionally operated independently of direct political accountability.
- Benefit: It ensures that the judiciary remains accountable to the public and elected representatives, reducing the risk of judicial overreach and fostering a judiciary that reflects the will of the people.
10. Clarification of Executive Powers
- Protection of Executive Decisions: The amendment adds protections to prevent courts from inquiring into advice given to the president by the prime minister or the cabinet.
- Benefit: This clarification helps define the boundaries between the judiciary and the executive, ensuring that the executive’s decisions cannot be unnecessarily obstructed or overturned by judicial review. This separation reinforces the roles of each branch of government.
Conclusion
While the proposed amendments have sparked controversy and concerns over the independence of the judiciary, their proponents argue that these changes introduce much-needed reforms to promote accountability, efficiency, and transparency within the judicial system. By regulating the appointment process, limiting the powers of the CJP, and introducing performance evaluations, the amendments aim to create a more balanced system of governance where the judiciary, executive, and legislature operate within clearly defined roles.