The proposal to deal with the constitutional issues is not a recent issue. It was incorporated in The Charter of Democracy 2006 signed by former prime ministers Benazir Bhutto and Nawaz Sharif.
Article 4 of proposed amendment states, “A Federal Constitutional Court will be set up to resolve constitutional issues, giving equal representation to each of the federating units, whose members may be judges or persons qualified to be judges of the Supreme Court, constituted for a six-year period. The Supreme and High Courts will hear regular civil and criminal cases. The appointment of judges shall be made in the same manner as for judges of higher judiciary.”
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The proposed amendment needs to be seen in current polarization of institutions & the civil society. The favors awarded to a political party with decisions based on partisanship, in particular, the judgement by the Supreme Court on July 11, 2024, intensified the situation, sending shockwaves across the country. The decision, which granted rights to a party not even part of the case, has been unprecedented, deepening the sense of instability.
Whereas the courts must be free as media should be free & there must be separation of powers of judiciary & executive. This theory is based on a presumption that all institutions will work without partisanship. However, the Supreme Court, as the different segments of society are deeply divided. Does then, freedom to work independently translate into freedom to work independently exercising their partisanship?
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In a democratic order, no one should be above law. Decisions must be made on basis of law not popularity. Few sentences have been quoted more often than the aphorism: “Justice must not only be done, but must also be seen to be done”. This dictum was laid down by Lord Hewart, the then Lord Chief Justice of England in the case of Rex v. Sussex Justices, [1924] 1 KB 256.
Laws are needed in changing kaleidoscope of political and societal variation. All need to be equal before the law, unfortunately it seems some are more equal than others.
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The writer is a lawyer, academic and political analyst. She has authored a book titled ‘A Comparative Analysis of Media & Media Laws in Pakistan.’ She can be contacted at: yasmeenali62@gmail.com and tweets at @yasmeen_9
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