Last week, the government circulated a draft of the 26th constitutional amendment of Pakistan. The draft is being termed an attack on the independence of the judiciary and has also raised concerns about the mala fide intention of the government.

“Constitution is not a mere lawyer’s document, it is a vehicle of life and its spirit is always the spirit of age.”

Firstly, the timing of the amendment must be kept in mind. The amendment, yet to be tabled, has been broadcasted when the retirement of the Chief Justice of Pakistan (CJP) is just around the corner. It goes without saying that any ordinary or constitutional legislation, must not be made person-specific. Any law that is made individual-specific, except for the protection of women and children, would stand violative of Article 25 of the Constitution of Pakistan. However, the current amendment paves the way for the incumbent CJP to be appointed as the first Chief Justice of the prospective Federal Constitutional Court (FCC) even after his retirement as the age of superannuation is set at sixty-eight.

Secondly, the establishment and the process of appointment of judges of the FCC stated in the concerned draft augment the apprehensions relating to the independence of the judiciary. The FCC replaces the original jurisdiction (disputes between governments, direct petitions, or on its own motion relating to the enforcement of fundamental rights) of the Supreme Court, and all such cases now........

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