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Judiciary’s debacle
ON the International Day of Democracy in September, Prime Minister Shehbaz Sharif extolled the virtues of democracy, calling it the “cornerstone of a just and progressive society” and stressing continued efforts to strengthen it.
But soon after, his government pushed through a slew of amendments to the Constitution and laws widely seen as destructive to judicial independence — which is a cornerstone of democracy. The government’s legal wizards are suggesting further changes in the laws on the pretext of combating terrorism and anti-state elements.
Why is the government reshaping the legal and constitutional framework to drastically tilt power in favour of the executive, virtually relegating the judiciary to the status of an attached department? Why is it instilling more repression and divisions in the polity at a time when the country desperately needs stability and the rule of law to win the confidence of foreign and local investors? The short answer is: survival. This requires further elaboration.
Historically, Pakistan’s civilian governments have faced challenges from a combination of forces, including the political opposition, the judiciary, and the establishment. In fact, the establishment has been a key factor in the induction and removal of governments, while the judiciary and political opposition have generally played a complimentary or ‘enabling’ role in the making or unmaking of a political system. The current dispensation has also been confronting threats to its legitimacy and endurance from its ‘questionable’ inception, given the controversial elections and resulting litigations which could drastically reduce the number of seats ‘unfairly’ claimed by the coalition government. In short, the government’s fate hangs in the balance.
But this time around, the judiciary — at least a substantial part of it — refused to fall in line. In fact, a new breed of judges sitting in the high courts not only resisted the extraneous pressures, but also hit back by exposing the powerful intelligence agencies’ strong-arm tactics against them to get the ‘desired results.’ Therefore, it was in the interest of both the government and its powerful backers in the security establishment to ‘tackle’ the increasingly independent-minded judiciary, before it was too late.
Why are the rulers, through their actions, relegating the judiciary to the status of an attached department?
In fact, much more was at stake. Had the judiciary rectified the electoral wrongs allegedly committed by the Election Commission of Pakistan in collusion with the powerful forces, it would have impacted the political system in three critical ways. First, the PTI’s narrative of elections being rigged would have been vindicated, which could have toppled the government, delegitimised the ECP, and, perhaps for the first time, made the powerful establishment — a guarantor of the current system — uneasy.
Second, by rectifying the electoral results and returning duly elected members to their respective legislatures, the judiciary would have emerged in the eyes of people as the ultimate and creditworthy arbiter, which, in turn, would have substantially restored the public’s confidence both in the judiciary and the resilience of the constitutional machinery.
Third, the undoing of a politically engineered system single-handedly by the judiciary would have dented the hitherto establishment-dominated matrix of power. Possibly, the political system would have seen a new alignment of forces within the state organs, driven by the common intention of building a much-needed firewall against the intrusion of undemocratic forces.
Of course, the traditional wielders of power and their opportunistic political allies would have never allowed the judiciary to disturb the long-existing power axis, or to crystallise its institutional resistance into a permanent countervailing force. As a result, the Constitution was drastically amended — and, that too, in the most questionable, if not utterly detestable, manner — in order to weaken, divide, and dominate the judiciary in general, and the Supreme Court, in particular.
But unfortunately, the enactments go against the very concept of a modern democratic judicial system, which features three essential components — independence, integrity, and efficiency. Thus, the new law is tailored so as to reward the malleable and opportunistic elements in the judiciary and punish the independent and fair-minded ones.
Moreover, it compromises judicial independence by allowing parliamentarians (read: politicians) to meddle in its internal administrative and disciplinary affairs, including fixing the benches and monitoring and evaluating the performance of judges. And finally, the induction of judges to the higher judiciary and the ‘selection’ of the chief justice of Pakistan would also be largely tempered by narrow political considerations in order to bring in judges seen as ‘pliable’, rather than those known for their efficiency and character.
Historically, whenever a democratic constitutional order or one of its organs has come under attack, it is saved by a confederacy of pro-democracy forces — lawyers, judges, civil society, academia, political opposition, and the media. Indian democracy was also derailed during the 1970s by the then-prime minister Indira Gandhi, who imposed an internal emergency. She amended the constitution and laws to crush the opposition and rush through her controversial ‘socialist’ agenda. As much of the opposition leadership was behind bars, the judges took up the cause of saving democracy. Assisted by some able lawyers, the Indian supreme court passed a string of judgments developing the doctrine of ‘basic structure’ that built a guardrail around fundamental rights.
We also had a round of judicial struggle when judges, lawyers, civil society and political workers came together to save the judiciary against the onslaught of a military dictator. But it is a sad reflection on our current polity that it is miserably missing the pro-democracy confederacy while the judiciary is being ‘subjugated’. The judiciary is divided and leaderless; the bars have become too politicised to put up a common front; civil society is largely disillusioned with the squabbling and judges seen as ‘partisan’; and political forces are pitted against each other leaving much ground for the establishment to stay the course.
However, the PTI-led opposition believes the people will rise against the ‘mounting authoritarianism’, as did their counterparts in Bangladesh. No doubt, people have the potential to destroy the citadels of power. But they make sacrifices in the hope of ending an unjust system, not helping someone re-mend fences with the keepers of an unjust order!
The writer is a lawyer and an academic.
Published in Dawn, November 14th, 2024
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