AFTER hearing the case his life would be known for, Muhammad Munir retreated to his private quarters, where he collapsed on the sofa.

We know this because another (future) chief justice, Nasim Hasan Shah, was there: “I saw a heartrending scene. Here was this man, who half an hour earlier had been presiding with all the majesty of his office at the Federal Court, now lying prostrate,” as others sprinkled water on his face. “Obviously,” writes the author, “he had been physically and emotionally drained by the proceedings.”

That was gracious of him: the decision in Federation vs Tamizuddin not only derailed democracy for good, it also delivered the courts to the deep state.

In the decades since, the executive carried on tightening its grip — some of those sad notes still echo today: Bhutto amending the Constitution to extend a favourite chief justice; Zia’s PCO, a purge by any other name, burying judicial independence for years.

With the rise of Pervez Musharraf, the Dogar Courts were brought in to dry-clean emergency rule — the price of serving on them was to betray the Constitution. Through it all, it would be fair to say the house usually won; that there were old judges and there were bold judges, but almost no old, bold judges.

It may be time to make that choice again. Because the 26th Amendment — what’s been leaked — is an all-out assault on the Cons­titution. Lawyers across the spectrum have dubbed it a scandal, a suicide pact, a neo-PCO, and with reason: this is, in 77 years, the most corrosive solution to the executive’s major check: the unbowed judge.

The price of serving on them was to betray the Constitution.

For starters, it hollows out the Supreme Court of its main function — interpreting the Constitution — and sets up a brand new federal court to do it. Shorn of its purpose, the demoted Supreme Court shall now concern itself with civil nosebleeds, land disputes, maybe the odd buffalo wandering into a stranger’s rice paddy.

Not yet content with asking him to lord over the ashes, the Supreme Court’s chief justice will be chosen by a crew of MNAs dominated by the ruling parties. This not only reverses any gains made for independent appointments since at least 1996, it encourages hopefuls to audition for their role as power’s number one favourite.

Things get even worse for high court judges, who can now be transferred from province to province in the manner of common bureaucrats. Imagine if, at the first sign of resistance, the centre keeps ping-ponging courageous judges between Quetta and Karachi: would the integrity of the Islamabad High Court remain intact if the state could have dispersed the six letter-signing judges over four units? Or if their writ jurisdiction had to cede to ‘national security’?

All of which brings us to the new Dogar bench so proposed: this federal constitutional court, or ‘FCC’, will have its first chief justice handpicked by the prime minister! Unless the FCC stands for Fully Controlled Chaperones, this is no less than extraordinary. Plus, if our history around the term ‘consultation’ is anything to go by, then that same chief justice will go on to pick his fellow judges.

Not least, Pakistan is a common law jurisdiction, hence its reliance on interpretation; on hundreds of years of precedent. We already have a ‘constitutional court’: the high courts and Supreme Court. A separate constitutional court is from civil law countries — think France or Germany — one that’s alien to our legal system.

In sum, the Supreme Court is being destroyed and replaced by a brand-new, even-more-supreme court, just one that’s junior to the PM. If this sounds like the end of the in­­dependence of the judiciary, that’s because it is: the third branch will be sawed off and remade a support beam.

And the next victim will be the ordinary litigant: as the JUI-F’s senator Kamran Murtaza has already revealed (and opposed), one late-night draft was all set to water down Article 8 — the protection of fundamental rights.

That this journey began with the trash-fire law that was the Practice and Procedure Act is now plain — those praising its case-fixation committee overlook the fact that the new method still results in mostly ‘li­­keminded’ benches; that its appeals process has mainly managed freezing out the military trials case; and that it has opened the door to a rump Assembly mangling the Constitution to punish the judges.

But the road must end there: this amendment cannot stand. If the idea was to reduce backlog, all it does is throw up another needless forum. If the idea was to honour the Charter of Democracy, the same charter calls for FCC judges to be appointed by a judicial commission (and not the PM’s speed dial).

And if the idea was the chief justice’s extension, that won’t work either. On Oct 26, Justice Syed Mansoor Ali Shah will be chief justice of Pakistan. Best to act accordingly.

The writer is a barrister.

Published in Dawn, September 20th, 2024