Bilawal Bhutto and Maulana Fazalur Rehman, for disparate reasons, finally struck a difficult but diluted 26th constitutional deal that allows a fragile Shehbaz government to sideline senior puisne judge Mansoor Ali Shah from becoming the next Cheif Justice. The hurry to get the amendment through by hook or crook four days before the appointment of the next CJ exposes the expediency.

Without Bilawal and Maulana’s caution against some of the most ‘poisonous’ contents of the mysterious initial drafts and mutual flexibility, the 26th Amendment would not have passed in its present form. While balancing judicial activism, the Amendment has strengthened the federal character of constitutional benches with a slightly greater role of legislators in judicial recruitment and evaluation. It is yet to be seen how would top judiciary adjust to a dual structure and how far the executive would be able to constrain the independence of the judiciary.

Inspired by his mother Benazir Bhutto Shaheed’s idealism of the Charter of Democracy, long-compromised by the two major adversaries to outflank each other with the backing of the powers that be, Bilawal partially succeeded in getting away with a watered-downed version of his federal constitutional Court– constitutional benches at federal and provincial levels. In this three-way power struggle, a dominant military establishment partially succeeded in check-mating an assertive judiciary in connivance with a most docile civilian part of the executive—PM Shehbaz govt. It allowed political competitors to make gains at each other’s cost with major ideological gains for the clergy on the prohibition of Riba and political browny points for both Maulana and Bilawal in the switching political alignments. Prime Minister Shehbaz Sharif lost his initiative to a more dynamic Bikawal Bhutto, on the one hand, and PTI leadership seems to have tactically suffered due to its muddle-headedness, on the other. PTI’s boycottism and Imran Khan’s rejectionist view are costing the popular party too much. It looked like a lost bunch of clueless slogan-mongers in the whole constitutional patchwork.

The assertion of Cheif Justice and the Supreme Court as a post-58-2 (b) member of the Troika replacing President under the 18th Amendment diluted under the coercion of CJ Iftikhar Chaudhary (a PCO judge) by the 19th Amendment, has finally been ‘balanced’ through the 26th Amendment.

A stormy period of judicial activism under successive CJs from CJs ambitious Iftikhar Chaudhary, cunning Saqib Nisar, mischievous Khosa, senile Gulzar, politically aligned Bandyal to an ego-centric Qazi Faiz Isa had over-extended the judicial arm beyond judicial propriety at the cost of the legislature, civilian executive and constitutional caution. After a successful showdown with General Musharraf, whose first breach of the constitution was legitimized by the PCO-judiciary, the Supreme Court emerged so powerful that it sent two elected prime ministers packing on ridiculous grounds and became juridical sovereign over all civilian executive affairs. In the power equation, the CJ became a quasi-president to fill the power vacuum created by the exit of the 58-2(b) empowered Presidency. That created a troika consisting of the Army Chief, The Chief Justice, and the Prime Minister, later becoming a lame-duck in a hybrid transition from military rule to a dependent civilian dispensation. During this period, the military and the judiciary together constituted the establishment and a power axis.