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The battle ahead
BARELY a week after bulldozing a controversial constitutional amendment through parliament, the ruling coalition is said to be deliberating a new plan to further mutilate the Constitution.
Although the contours of what is being described as the ‘27th Amendment’ are yet to be unveiled, there is some indication that the changes will likely reinforce the government’s control over the judiciary.
It may also include some of the clauses related to the trial of civilians in military courts that were dropped from the 26th Amendment. Further changes to the Constitution were on the anvil, but now the rulers seem to be in a hurry to push them through. A major reason for this urgency seems to stem from the growing concern that despite the passage of the 26th Amendment, the government may not be able to fully control the apex court.
In the meantime, the ruling alliance is planning to bring a new law increasing the number of judges in the Supreme Court to 23. The motive behind this move is apparent. The addition of six more judges at this stage is certainly not meant to lessen the huge backlog of cases, as is being indicated by the government, but appears to be driven more by a desire to pack the apex court with judges of its choice. This has become much easier with the new Judicial Commission dominated by parliamentarians. It will be interesting to see how the new judges are appointed.
The timing of the new move is quite intriguing. Many observers see it as part of an ongoing effort to make the judiciary completely subservient to the executive. It’s a dangerous game that will have long-term implications not only for the country’s judicial system but also for the democratic process, which is based on the trichotomy of power.
The new CJP’s challenges are many given the government’s actions to curb judicial autonomy.
While the 26th Amendment may have helped the government block the elevation of Justice Mansoor Ali Shah to the position of top judge, it should not expect the new incumbent to toe its line. The first two decisions made by the newly installed chief justice — to include Justice Shah and Justice Munib Akhtar in the Practice and Procedure Committee and also have them as members of the Supreme Judicial Council — seem to have upset the government’s game plan to have a controlled judiciary.
A major worry for the ruling coalition is whether it would have the constitutional bench it wants. In a TV interview recently, senior PML-N leader and prime ministerial adviser Rana Sanaullah said that the chief justice should not head the constitutional bench. He also said that Justice Shah and Justice Akhtar must not be part of the bench. Many observers see the statement as blatant interference in judicial matters.
It is apparent that the government had expected that the two judges would be sidelined. But that did not happen. Many believe that with his reputation as a straightforward judge, Chief Justice Afridi will not go by the script. The decision after a full court meeting this week sets a clear direction for the top court. The top priority seems to be to unite a fragmented court and improve the delivery of justice.
But the incumbent chief justice’s challenges are daunting with the latest constitutional amendments limiting the independence of the judiciary. In his speech at the reference for his predecessor, he emphasised the importance of the trichotomy of power as the foundation of the Constitution, which many have pointed out appears to be under threat. There is a long battle ahead for the new chief justice, not only to uphold the Constitution but to also correct past mistakes of judicial overreach which had inflicted enormous damage on the institution.
It will be hard to banish the disruptive legacy of former chief justice Qazi Faez Isa from public memory. Many saw the credibility of the apex court as severely damaged under his stewardship. It is rare for judges to engage in public polemics. But his biases, many pointed out, were reflected in his judgments in critical political and constitutional cases. His ruling depriving a major political party of its electoral symbol was seen as aiming to disenfranchise a large section of voters and will be regarded as one of the biggest blots on his judicial career. The ruling has long-term implications for the country’s democratic process.
Days before his retirement, he declared a majority judgment on the redistribution of reserved seats in the national and provincial assemblies to be non-binding. There are not many precedents in Pakistan’s judicial history of a chief justice seen as undermining his fellow judges. It has not only damaged the writ of the apex court but has also exposed the former chief justice to charges of favouring the government in the power game.
There have also been questions about his taking up the review petition on the floor-crossing case in the last days of his tenure. His ruling came on the eve of the voting on the 26th Amendment that allegedly allowed the forced defection of the opposition lawmakers.
Many would agree with what Justice Shah said in a letter accusing the former chief justice of remaining “complacent and indifferent to external pressures on the judiciary” during his tenure. “Instead of standing as a bulwark against interference, he [CJP Isa] opened the gates wide, betraying the judiciary’s sacred role as a check and balance on power,” alleged Justice Shah, who missed the farewell reference for his former chief.
Not surprisingly, five other judges also stayed away from the event. It was a rare sign of protest against a chief justice who will be remembered for his divisiveness and capitulation to the powers.
The judiciary is perhaps facing its toughest test in defending its independence as the government plans to further distort the Constitution. In this situation, the responsibility of the top judge becomes much more important. Justice Afridi has pledged to safeguard the trichotomy of power. One hopes he fulfils his pledge. A tough battle lies ahead.
The writer is an author and journalist.
X: @hidhussain
Published in Dawn, October 30th, 2024
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