THERE comes a time when everyone has to take a stand, speak up, and be counted. And then, there is a time to be silent. The difficulty lies not in the question of whether one should voice their concerns, but in knowing when to voice them. In Pakistan, with the advent of the ‘judicial package’, an opportunity to speak out seems to have presented itself.
This is a judicial package that has been anything but welcome. By virtue of the proposed amendments, the government is attempting to upend the judicial set-up as we see it. They are not reforming it, building upon it, or improving it. They are, without any doubt, dismantling it. In its place, they are installing a set-up, which is in essence subordinate to them. In fact, the proposed amendments are so drastic that the term ‘judicial package’ appears to be a euphemism for ‘judicial fix’.
After all, any set-up in which the Supreme Court becomes subordinate to a ‘court’ which is nothing more than a glorified attached department of the government is scandalous. Any proposed amendment which takes away the people’s right to hold national security agencies accountable for enforced disappearances or abuse of authority is akin to rubbing salt in already festering wounds. And any proposal which takes cover under the heading of ‘judicial reforms’ but also slips in alien provisions empowering cantonment boards to levy taxes is a bit too blatant.
It is, in effect, a barefaced effort to break the system of checks and balances that the trichotomy of power allows a polity. In doing so, it also attempts to concentrate all power in a single centre that seeks de jure, and not de facto, recognition. That should be something that is frightening to all of us.
Under the Constitution, each pillar of the state has a well-defined role. Parliament is to legislate, the executive is to enforce, and the judiciary is to interpret. Each organ is to act within its own domain, to whatever extent is possible, as a check against the other. But if parliament were to go beyond its role and attempt to dismantle the independence of the judiciary and create a subordinate department in its place, it would defeat the very basis of the constitutional structure. In fact, the Constitution would become so lopsided and imbalanced that it would simply not be workable.
The Constitution is a social contract between Pakistan and its provinces, between the governed and those governing. It was evolved through understanding among the stakeholders after extensive debates, and it is the only Constitution that the federating units actually agreed upon, with their aspirations represented in it. In light of this, and especially in the context of these times of extensive turmoil, whether it be terrorism in KP, separatism in Balochistan, unrest in Punjab, or resentment in Sindh, maintaining and protecting the sanctity of this document is pivotal, necessary, and a matter of survival, and not mere convenience.
And it is important to keep in mind that this social contract was delivered to us by politicians in 1973. It is ironic, therefore, that it is through the hands of those very politicians that the same is being weakened, or as some contend, entirely dismantled. It is hardly surprising though. After all, today’s political class talks about democracy but acts like a dictator. It champions the sanctity of the Constitution but does not actually follow it. It asserts parliamentary supremacy, yet refuses to debate any significant proposals in that very parliament. Funnily enough, this political class claims to represent the people, but talks on behalf of everyone but them.
Is it a ‘judicial package’ or a ‘judicial fix’?
And that is why this is outrageous. It is our public representatives, those who are supposed to mirror our sentiments and will, who have been actively hiding the contents of the proposed amendments from us. There could be many reasons for not revealing the draft earlier, but perhaps, amongst those varying reasons, is an acknowledgment that the measures that were being proposed were not popular or representative, nor did they mirror the demands of the electorate or the needs of the populace. Hence, they sought to bulldoze them through.
They may justify this attempt on the premise of parliamentary supremacy, the rule of law, or the beauty of democracy, but frankly, can anything be more inimical thereto? Evidently no, and that is why the time to speak has arrived — speak up and affirm that this situation is not acceptable. It is time for true reform, not that born of bad faith. It is time for course correction, but not of the variety which only benefits the elites. And it is time to be representative, but of those who do not have a voice, as opposed to those whose voice we can ill afford to drown out. It is time for action, not silence. n
The writer is a Karachi-based lawyer.
X*: @basilnabi*
Published in Dawn, October 6th, 2024
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