When the legislature does not accurately represent the will of the people, when laws benefit only the powerful, and when brute force replaces public debate, no law—regardless of its substance—will be seen as legitimate. Lifetimes will be spent defending every sentence.

Parliamentary democracy is about more than simply erecting polling booths every few years. It’s a system premised on the role of public participation in government affairs. And elected representatives have a moral duty to do everything to enable this ideal. The 26th amendment’s crisis of legitimacy exists because it was conceived by discarding the principles of freedom of speech, information, transparency, and due process.

Consider the current composition of Pakistan’s Parliament. The 2024 general elections delivered a government whose representatives scatter the moment anyone utters the word “Form 45.” The Pakistan Tehreek-e-Insaf (PTI), forced to contest the election stripped of a unified electoral symbol, continues to be denied its share of reserved seats despite a Supreme Court ruling in its favour. To top it all off, the Senate elections for one province, Khyber Pakhtunkhwa, have yet to be held. 

This is the Parliament that sought to tinker with the Constitution. Legitimacy never really stood a chance. 

The legitimacy problem is compounded by the process that was adopted to pass the 26th amendment. Barring a small round of stump speeches by Pakistan People’s Party (PPP) Chairman Bilawal Bhutto-Zardari on the virtues of a constitutional court, no public draft of the amendment was ever shared, and no public deliberations were held. Clothed in secrecy, the people were deemed superfluous.

When it was finally presented in Parliament, no one could say for certain what its contents were. The public saw no draft, but saw visuals of politicians who until recently had been “missing” suddenly appear to cast their vote for an amendment that nobody had yet seen. 

“These are my senators,” wrote an exasperated Sardar Akhtar Mengal on social media. “Where are they coming from? Look at their condition.” Shortly following these scenes, members of the ruling coalition gave grand speeches on the sanctity of Parliament. Akhtar Mengal subsequently had a terrorism case filed against him.  

In the end, the 26th amendment was passed in the early hours of the morning after a marathon legislative session. According to Pakistan Institute of Legislative Development and Transparency (PILDAT), the National Assembly approved it in five hours. The Senate passed it in three. Everything, it seems, had to be done as soon as possible, lest the weight of conscience, or the retirement date for the Chief Justice of Pakistan, prove too much to bear. 

What is tragic is that those who brute forced this amendment knew exactly what they were doing. In a previous era, the same ruling parties had passed the 18th amendment. According to PILDAT, it was passed after a Parliamentary Committee on constitutional reform held 77 meetings over 10 months and spent 385 hours in deliberations. 982 public proposals were reviewed. 

The 26th amendment holds little democratic legitimacy because it is marred by allegations of coercion and a lack of transparency. A precedent has been set in which Parliament functions as a rubber stamp rather than a forum for democratic norms. For all the claims about its sovereignty, the institution of Parliament has been severely undermined. 

This brings us to the substance of the amendment. A substance that cannot escape the cost and circumstances through which it came about. 

There is no debate that Pakistan’s judiciary requires serious reform. Successive periods of judicial activism have left Pakistan’s democracy and the separation of powers in shreds. A massive backlog of cases has made the pursuit of justice elusive. But the solution to these problems is not to create a compromised judiciary unable to perform one of its core constitutional duties: accountability of the government. 

“The 26th amendment holds little democratic legitimacy because it is marred by allegations of coercion and a lack of transparency. It was conceived by discarding the principles of freedom of speech, transparency, and due process.”

The government’s first target was to restructure the Judicial Commission of Pakistan (JCP), the body responsible for appointing judges. It did so by reducing the “judicial” part of the commission to a minority. The incumbent government now enjoys a comfortable majority in appointing judges to the Supreme Court. The intent behind this change became clear when the government passed a recent law to increase the number of judges in the top court.  

There have been genuine calls to reform the JCP to allow for more stakeholders outside the judiciary to have a say in the appointment process. These proposals have called for greater transparency, objective criteria, and enhanced diversity in an effort to create balance between judicial independence and public accountability. Yet, the 26th amendment’s solution, devoid of objective criteria and balanced membership, simply gives today’s ruling government an uninhibited say over who gets to be a judge. 

Any law or constitutional scheme operates within a context and is developed according to that context. This is why references to how judicial appointments work in other jurisdictions can sometimes be unhelpful. While it may be true that there are certain jurisdictions where politicians have a say in judicial appointments, it is also true that many of these jurisdictions do not have a history of executive meddling in judicial affairs. In a state with a deep civil-military imbalance, giving the executive leverage over judicial appointments compromises the legitimacy of the judicial institution. 

Another innovation the 26th amendment introduced is to empower this compromised JCP to appoint constitutional benches within the Supreme Court. This court within a court would hear all constitutional matters. This was done in the name of reducing the backlog of cases before the Supreme Court. But it is a red herring. The number of constitutional cases before the Supreme Court is actually miniscule. The vast majority of cases clogging up the judicial system are before the trial courts and High Courts. Even otherwise, transferring cases from one department of the Supreme Court to another is no substitute for the deep structural reform that is necessary throughout the court system if pendency of cases is to be improved.

Perhaps if the government had left the composition and workings of this new bench to the Supreme Court, there would have been little objection. But the majority in the JCP will decide who sits on these benches, reserving for itself the power to exclude judges who it deems may go against its interest.

Constitutional cases, by definition, are cases against the government. A party to a case should not be allowed to choose its own judges. Especially if those judges owe their new appointments to them. In these circumstances, how much legitimacy would these constitutional benches have in the eyes of ordinary people?

Finally, a special parliamentary committee that proportionately represents all parties in parliament decides who becomes the Chief Justice of Pakistan from a panel of the three most senior judges of the Supreme Court. On the face of it, this seems like a fair proposal. But the process can only be fair if there is a clear criteria for selection based on merit rather than politics. In the absence of this, it is a mechanism to ensure the triumph of subservience over competence. Every few years, judicial politics will peak as judges audition to demonstrate that they will keep the government’s interest at the forefront in their decisions. 

In an effort to make judges less political, politicians have granted themselves the ability to appoint judges, select who hears constitutional cases, and pick the Chief Justice. 

This amendment was never about creating a more responsive and accountable judiciary, but one that could be more easily managed by a hybrid regime that is insecure about its own future. Divested of pretence, it must be called for what it truly is: an instrument of guarantee. In order to guarantee that a government with a shaky mandate continues to rule, both Parliament and the judiciary have been weakened. 

It is important to note that all this isn’t being done during an era of unchecked judicial activism. Instead, the catalyst was a decision where the judiciary pushed back against an unlawful attempt to deprive a political party of its share of reserved seats. The author of that verdict was prevented from becoming Chief Justice and excluded from constitutional cases. And the dissenting judge, who argued that compliance with Supreme Court verdicts was optional, ending up becoming the head of the constitutional bench.

Hassan A Niazi

The writer is a lawyer and former member of the visiting faculty at the Lahore University of Management Sciences. He did his LL.M. from New York University where he was a Hauser Global Scholar. He is currently based in Singapore.

The post Here’s Why The 26th Amendment to Pakistan’s Constitution Is Undemocratic appeared first on Dissent Today.

In the summer of 1909, in the midst of a naval arms race with Germany, a group of national security hawks in Britain schemed to introduce stronger legislation to prevent German espionage. The legislation at the time, the Official Secrets Act of 1889, was deemed too weak given some of its provisions had been watered down by the Parliament. Their proposed new draft would increase the range of offenses to which the Act would apply, but fearing Parliamentary backlash, they decided to wait for sufficient national panic to develop before they would introduce the draft. 

When a German gunboat reached the port of Agadir in Morocco, it alarmed the British enough for the Official Secrets Act of 1911 to be passed by the Parliament. There was little debate or consideration over its provisions, and it passed through all stages in the Commons in just a day. Years later, this Act that would form the basis for a 1923 legislation under the same name in India – that the present-day Pakistan continues to hold onto. 

More than a century after the events of 1911, we saw Pakistan’s own Parliament using the rhetoric of national security to bulldoze amendments to the Official Secrets Act with no debate, or concern for fundamental rights.

To understand just how damaging to democracy and rule of law the amendments to the Official Secrets Act, 1923 (OSA) are, we first need to consider its original framework. The Act is built around two major offenses: espionage (section 3) and disclosure of state secrets (section 5). 

Section 5 gives a good sense of the overall problems that run throughout the OSA. In short, it deals with “wrongful communication of information” and states that if any person has in their possession a “secret” document or information and wilfully communicates it to any other person, or foreign power, they shall be guilty of an offense. 

This provision is inherently problematic. The OSA does not define what a “secret” document is, leaving the definition to the discretion of members of the executive. It also doesn’t define numerous other terms such as “foreign power”. This legislative ambiguity was intentional. The OSA was enacted to protect the colonial state. It therefore required that maximum discretion be left in the hands of executive functionaries so that the law could be adapted to any situation, and deal with any threat. Legal certainty was a small price to pay for a colonial apparatus that harboured deep distrust for the people it ruled over through force. 

The Official Secrets Act gives legal cover to the executive to label anything as secret information and prevent its disclosure. It is irrelevant whether this information may, for example, expose government corruption or misconduct. This insulates the state from accountability and transparency – two hallmarks of democracy. Sam Zarifi, the secretary general of the International Commission of Jurists, once summarised in the context of the OSA in Myanmar: “Just about anyone in possession of unpublished government documents could find themselves facing prosecution and the harsh penalties a conviction may carry. Under this law many good journalists could be prosecuted at any time.”

The Official Secrets Act was never made to enhance democratic rule, neither in Britain nor in the colonies. Secrecy was to be the dominant form of governance, as historians Peter Hennessy and Rob Shepherd writing for the Telegraph put it: “For the bulk of the 20th century the British government exhibited a genius for secrecy which made it a world leader for reticence among democracies. It was as if confidentiality was built into the calcium of a Whitehall policy-makers bones, whether they be minister or civil servant, almost as if they couldn’t help it.” 

Britain’s version of section 5 of the OSA was the identically worded section 2 of the 1911 Act. Its ambiguous and broad nature was such that one Home Office report stated that 2,000 separate criminal offences could be said to be brought under it. When in 1971 a committee was appointed to review the law it found section 2 “a mess”, referring to it as a “catch-all” whose “drafting and interpretation are obscure, people are not sure what it means, or how it operates in practice, or what kinds of action involve real risk of prosecution under it.”

This is the legislation that Pakistan’s Parliament amended – an Act steeped in anti-democratic history. When our Parliament sought to amend the Official Secrets Act, it had an opportunity to change this. Instead, Pakistan’s Parliament sought to retain the ambiguity of the law while further empowering the already substantial role the military plays in our country. An initial draft that granted the Inter Services Intelligence (ISI) and Intelligence Bureau (IB) to search any person or place without a warrant sailed through the lower house. Only because a faint sliver of democracy remained in the Senate were we able to prevent this complete capitulation to the establishment. 

The Official Secrets Act gives legal cover to the executive to label anything as secret information and prevent its disclosure. It is irrelevant whether this information may, for example, expose government corruption or misconduct

Yet the rest of the draft remained, and ended up becoming a law. These amendments undermine Pakistan’s democracy both in their substance and in the process that led to them. 

In substance, a slew of catch-all definitions are introduced. The definition of “document” includes everything from unwritten information, contracts, and agreements. An “enemy” can be anyone who engages with any group that may be deemed prejudicial to the safety and interest of Pakistan. It also adds new offenses, chief among them being the unauthorized disclosure of the identity of members of the intelligence agencies. These definitions would worry anyone familiar with how casually this country labels people “foreign agents” or groups as “foreign funded”. They also ensure that the problems already inherent in Section 5 are compounded. Any document can be secret, and any person can be caught within the broad definition of an “enemy”. Journalists are the most likely group of individuals to be caught in the crosshairs of the Official Secrets Act. This has been the case in numerous other jurisdictions where this law exists, such as when in 2002 journalist Iftikhar Gilani was arrested under the Official Secrets Act in India for having documents highlighting human rights abuse in Kashmir in his possession. 

We are supposed to take comfort in the fact that the Federal Investigation Agency (FIA) is the investigative agency under the Act and requires a search warrant, but given the incredibly broad nature of the offences under the Act, the FIA may as well have free reign to arrest anyone it wants. This is in addition to the law’s existing provision which gives power to the armed forces to arrest any person, without a warrant, in the vicinity of a “prohibited place” on a reasonable suspicion of being involved in an offense under the Act. Given the long and broad list of prohibited places in the Act, as well as the number of military owned areas in the country, there is almost no limit to what can be achieved to curb dissent through the Official Secrets Act.

When the Parliament sought to amend the Official Secrets Act, it had an opportunity to change the anti-democratic history of the law . Instead, the Parliament sought to retain the ambiguity while further empowering the already substantial role the military plays in Pakistan.

One could argue that laws on espionage and state secrets are necessary. Yet, the problem is that these laws are left intentionally vague, overbroad, and disproportionate so that they can be used to stamp out rights such as freedom of speech and information. Such laws enhance Pakistan’s civil-military imbalance rather than reigning it in. Had Parliament considered how this law may be abused, it may have been more circumspect. It may have, for example, considered adding a ‘public interest’ defense to the law, protections for journalists, and narrowed the scope and ambit of Section 5 as the UK did to its own legislation in 1989. However, a Parliament that was supposed to represent the people, was too busy representing the interests of the establishment. After all, the initial draft of the amendments demonstrates that these amendments were being introduced for the establishment. 

A 2006 report in India on the Official Secrets Act once said that it was introduced in a “colonial climate of mistrust of people and primacy of public officials in dealing with citizens. OSA created a culture of secrecy. Confidentiality became the norm and disclosure the exception.” In Pakistan, it seems little has changed since then. 

Hassan A Niazi

The writer is a lawyer and former member of the visiting faculty at the Lahore University of Management Sciences. He did his LL.M. from New York University where he was a Hauser Global Scholar. He is currently based in Singapore.

The post Official Secrets Act: How Parliament Surrendered Democracy to the Military Establishment appeared first on Dissent Today.

Concerns over the Chief Justice of Pakistan’s discretionary powers are now being raised from within the Supreme Court. Institutional solidarity has fractured because of the repeated, bullheaded refusal of each Chief Justice to rein in their power. In a searing critique that brings to light the polarisation now prevalent in the court itself, Justice Mansoor Ali Shah accused the office of the Chief Justice of Pakistan of making the Supreme Court a “one-man show.” He argued that it was “anachronistic, outdated and obsolete but also antithetical to good governance and incompatible to modern democratic norms.”

The dissenting voices in the judiciary have a point. The powers of the chief justice are being exercised without any modicum of accountability. The only institution that can hold the Chief Justice accountable is the Supreme Judicial Council – essentially the judiciary itself. Ironically, that is where the chief justices have shown maximum restraint. This was witnessed when the Women’s Action Forum filed a reference against former chief justice Saqib Nisar. Ultimately, it was a matter never heard or addressed despite the formulation of a well-documented and strong case against him.

Why absolute discretion is problematic

The rule of law and attainment of democracy must be the final destination for any path forward for Pakistan. And while these concepts often elude easy definitions, there are some broad ideas about them that we can all agree on.

First of all, a system that adheres to the rule of law requires decisions to be made based on objective principles, free from arbitrariness – where all cases are treated alike. This means that an individual cannot have absolute discretion.

Moreover, the fundamental principle of democracy is the people’s say in the decisions that impact their lives. Tied with this is the concept of accountability of public officers through the exercise of the vote. And every state institution is bound to respect and aspire to these principles. It is, therefore, necessary for the Supreme Court of Pakistan to not only ensure that every organ of the state is held accountable for any deviation from these principles, but also hold itself to the same standards.

The Supreme Court’s power to take suo motu notice, as is being currently practiced, is difficult to justify from both a rule of law perspective, as well as from the governance standpoint. Judicial restraint and reforming the system that grants these unbridled powers of the Chief Justice of Pakistan is the need of the hour.

The anomaly

In a constitutional system, no court can exercise jurisdiction not specifically granted to it under the law. For a case to be heard directly by the Supreme Court (as per its original jurisdiction), the conditions outlined in Article 184 (3) must be fulfilled: The case must relate to a matter of public importance and involve a violation of the fundamental rights guaranteed under the Constitution.

Since the 1973 Constitution was framed, and all the way to the 1990s, this power was always understood by the Supreme Court to mean that an actual case needed to be filed before it met the criteria of Article 184 (3). During this period, the Chief Justice of Pakistan could not create a case on his own – based on a news headline, letter or his own opinions. This novelty came nearly about two decades after the Constitution was enacted. This power was created through judicial activism. It has no basis in the text of the Constitution, and it had not even been mentioned by the Supreme Court when it framed its own rules in 1980. Despite this, the top court eventually established a precedent that gave the Chief Justice the power to take up matters of public importance out of his own volition.

While there is precedent regarding how the ambiguous terms in 184 (3) are to be interpreted, recent history has demonstrated that what is a matter of public importance depends largely on the views of the Chief Justice of Pakistan. For some, it has been privatization, for others disqualification of politicians. Matters of public importance for the country change as fast as the Chief Justice.

As for fundamental rights, the period spanning from Iftikhar Chaudhry to Saqib Nisar has shown us that if a judge feels strongly enough about an issue, he will interpret a fundamental right so expansively as to justify a foray into making policy. Saqib Nisar did precisely this with the right to life, using it to justify his project of fixing Pakistan’s water woes.

Due to these unenviable precedents, Chief Justice of Pakistan now has the unbridled authority to take up any matter that he considers important enough, and even make a policy that can be imposed on a country of over 220 million people. This is an untenable position for any democracy to have.

The way in which suo motu power are currently being exercised undermines democratic decision-making. By using it to frame policy, the Supreme Court routinely acts beyond the scope of its judicial mandate – acting as the executive or the legislature with the economic or political competencies to participate in either. Under such circumstances, the separation of powers, an essential accountability mechanism in a democracy, is swept aside.

In one of the most infamous recent examples, Chief Justice Saqib Nisar decided that Pakistan needed to build another dam and began using his office to raise funds for the purpose. That was problematic because the country’s policy on water management and the use of natural resources should not be determined by an individual – especially when that person is neither elected nor an expert on the issue.

Policy decisions, whether on public health or the economy, are supposed to be made by elected representatives. The Constitution of Pakistan makes this distinction clear by treating principles of policy as distinct from fundamental rights. The latter can be enforced and implemented by courts; the former are aspirational goals left to the executive and parliamentary discretion. The purpose of the policy principles enshrined in the Constitution is to broadly frame or define the type of democratic system the country ought to have. But it is up to the legitimate stakeholders involved in the democratic process to decide how to get us there.

The democratic process is far better suited than the judiciary to take the right decisions on matters related to public policy. The nature of parliamentary democracy is such that issues must be debated, reasoned, and weighed by elected representatives before decisions can be taken. The entire process is built to accommodate compromises and negotiations on intractable issues. The courts aren’t suited for this because they are fundamentally adversarial in nature. They are built not on compromise, but on exacting legal rules. They cannot weigh the numerous equities at play, for instance, deciding how best to allocate state resources given a certain set of competing interests and influences.

Apart from lacking the expertise to solve these issues, the judiciary is not the right place for these decisions because it is unelected and therefore its policy decisions would lack legitimacy. They cannot be held to account for their bad decisions the same way as parliamentarians can – simply because judges can’t be voted out of office.

This is why whenever the Chief Justice of Pakistan uses the suo motu power to determine the state policy, he undermines democracy. Institutional boundaries are blurred, and an unelected individual is allowed to wield extraordinary power to impose their own subjective economic, social, and political views on an entire nation. And these discretionary powers find no clear basis in the Constitution.

The Rule of Law Problem

That the authority to take suo motu allows judges to form a national policy is enough to consider steps to curtail this power. And even if this power is exercised for fundamental rights protection, the power runs into broader rule of law problems.

When the Chief Justice takes suo motu notice of an issue, he is signalling that he cares deeply about the question it raises. That issue is then heard by a bench that he himself presides over. Thus, it is established even before the first hearing that the judge heading the bench feels strongly about the matter.

Add to this the Chief Justice’s absolute discretion to determine who sits on a bench, hearing a case with him. This means disputes become foregone conclusions. These judges often have the same ideological views on the matter as the top judge. Agreement is guaranteed from the outset. In the rare case where there is dissent, the bench can always be reconstituted. This happened, for instance, when Saqib Nisar abruptly reconstituted a bench to exclude Justice Qazi Faez Isa as soon as a glimmer of disagreement was witnessed, or even with the recent fiasco during the hearing concerning the date for provincial elections in Punjab and KP.

It is an essential attribute of the rule of law and due process that justice must not only be practically done, but should also be “seen to be done” by the people. The public’s confidence in the impartiality of the judicial process is as important as the results of that process. People need to have confidence that judges have a certain level of detachment from the cases they are hearing, that all sides will be heard fairly and that decisions will be made according to objective principles rather than the subjective views of the Chief Justice. A suo motu notice prevents this.

Instead, it signals that those who hold the same views on an issue as the current chief justice’s pet project will evidently have greater chances of success in the judiciary. During Saqib Nisar’s tenure, it was clear that a person’s views on the dam fund would determine how they would be treated in court. The image of the judiciary as an impartial arbiter was fractured.  Former Supreme Court justice Maqbool Baqar said about the power to reconstitute benches: “The practice has also tarnished the public’s perception about the independence of the judiciary.” Rule of law is also about reigning in discretion.

Justice is a system

I am conscious that all these arguments – on democracy, discretion, and impartiality – may be met with the same objection: that Pakistan is not an evolved democracy; the people in parliament are corrupt; our institutions are not independent. That in such an environment, the court  has no choice but to intervene to protect the country.  That extraordinary circumstances require extraordinary measures It is no wonder, thus, that suo motu cases which are tough on politicians are celebrated.

It is an argument so familiar to Pakistan’s history that at this point it has lost all meaning. It justified military rule and was the premise of Justice Munir’s use of the doctrine of necessity. To continue to insist on its worth is a failure to learn from history.

That all politicians are corrupt is another cliché. Yes, corruption exists in Pakistan, but one-off decisions cannot solve the institutional problem. Whatever our opinion on politicians, we must respect that they were voted into power by millions of Pakistanis. To disregard them is to disregard democracy.

Of course, some suo motu decisions have given us good results. However, focusing on singular decisions is myopic. Justice is not simply about results. It is a system. Focusing on results creates  little distinction between justice and the rule of the mob. Mobs don’t make a just process. An obsession with results ends up turning our perception of the fundamentals of the rule of law into unnecessary obstacles rather than necessary foundations.

When we forget about systems, we never fix the problems that plague them. We create perverse incentives instead. Because the justice system is broken, everyone wants a suo motu on their case because they recognise that it will be heard on an expedited basis. After all, it is the ability to generate enough buzz and headlines that will get your case heard by the Chief Justice – extra points if it can help him build a legacy. Meanwhile, the decades-old property dispute of some poor individual is left navigating the maze of trial and appellate courts for decades.

Law as Integrity

From here we need to chart a path forward. We need a deeper conversation on the relevance of suo motu powers and the merits of judicial restraint. Judicial restraint should not be caricatured as a theory preventing the evolution of law and precedent. Instead, it should be viewed as a principled stand in favour of the separation of powers.

Given how anomalous the suo motu power is in a democracy, the ideal solution would be to eliminate it altogether while framing clear guidelines on the exercise of the court’s jurisdiction when a petition is filed under Article 184 (3). The parliament should enact a framework on what the term ‘public importance’ can mean.

Alternatively, if the power is to be retained, we could have a more robust and consultative framework for its exercise. For example, to modify proposals given in Pakistan’s Senate by Farooq Naek in January 2022, and those by Justice Mansoor Ali Shah in his note in the recent provincial election case, the decision regarding whether a case merits suo motu notice should be taken by a panel of five judges in the Supreme Court rather than just the Chief Justice. This panel of judges could be a mix of senior and junior judges.

If the panel decides to take suo motu notice, they should then refer the matter to be heard by a separate bench of judges – to ensure impartiality.

These decisions should be appealable (currently suo motu decisions can only be challenged in review before the same bench of judges). Mistakes happen after all, even by the Supreme Court.

But none of this will matter unless we have a broader political consensus that the Supreme Court should not involve itself in cases that relate to economic and social policy that are best left to elected representatives. Pakistan needs fewer unelected institutions wielding power, given the country’s history.

To have integrity, the law must function as a body of coherent decisions. And this stability cannot be achieved if the law changes with the Chief Justice.

For far too long, our rule of law has been juggled from the tenure of one Chief Justice to another. It is time we return this rule to whom it belongs: the separate institutions of the government, who are required to exercise this rule transparently.

Hassan A Niazi

The writer is a lawyer and former member of the visiting faculty at the Lahore University of Management Sciences. He did his LL.M. from New York University where he was a Hauser Global Scholar. He is currently based in Singapore.

The post Here’s How Chief Justice’s Suo Motu Powers Undermine Democracy appeared first on Dissent Today.