Taming the judiciary

WHAT happened inside and outside parliament last weekend was nothing less than a tragicomedy. Rarely has Pakistani politics stooped so low.
Some 400 members of both Houses remained virtually captive for days while the top leadership of the ruling coalition desperately tried to secure the numbers required for the passage of controversial constitutional amendments, which sought to change the entire structure of the country’s top court.
It seemed that the government and its allies were in a great hurry to wrap up the vote by the weekend. And they were confident of getting it done. But the crafty Maulana Fazlur Rehman was not ready to play ball, denying the government the vote of eight key JUI-F members in the National Assembly. Defeat in the numbers game may have forced the government to step back for now, but the game is far from over.
Indeed, it has been a setback for the government and the security establishment that had put its full weight behind the move. The taming of the judiciary is part of a wider plan to remove any challenge to the military-backed dispensation. The amendments that were apparently proposed would not only have made the judiciary completely subservient to the executive but also demolished the very basis of the Constitution that enshrines the separation of powers among the three pillars of state.

What is being described as a ‘judicial reform’ package has been on the anvil since the installation of the PML-N-led coalition government. Yet, no clear framework of the plan was made public.
What seems to have given it impetus was the increasing assertiveness of the apex and high courts in political cases, including the letter written by six judges of the Islamabad High Court, complaining against alleged interference by the intelligence agencies in judicial matters and their harassment of judges. In the past too, individual judges have made such allegations against intelligence agencies, but the collective protest was unprecedented.
What also seemed to have alarmed the government and the security establishment was the July 12 majority ruling by the apex court awarding the PTI its due share of seats reserved for women and minorities in the national and provincial assemblies. The decision changed party positions in the National Assembly, ending the ruling coalition’s two-thirds majority required for constitutional amendments.
One other factor was the impending retirement of the current chief justice next month. With his exit, the government feared it would lose someone it perceives as a sympathetic member of the judiciary, thus leading, in its view, to a shift in the balance in the top court. That, perhaps, was the reason behind the government and establishment’s move to push for the amendment that reportedly included an extension in the retirement age of Supreme Court judges to 68 years thus increasing the tenure of the top judge for three more years.

Intriguingly, the full draft of the proposed constitutional amendments was not even shared with the members of the cabinet or allied parties. Parliamentarians, who were asked to stay put, did not have a clue of what was coming till the end. Several members of the treasury benches told me that they would regularly receive phone calls from ‘unlisted’ numbers asking them to ensure their attendance in the session. The plot thickened when the law minister said on Sunday that he had received the draft only a few days ago.
The source of this whole exercise leaves nothing to the imagination. Nevertheless, the ruling coalition, with its questionable legitimacy, is a willing partner in this game of thrones. The events of the past week have completely exposed the claims of the mainstream political parties, which are part of the ruling coalition, with regard to their democratic credentials.
The most damaging reported provisions of the proposed constitutional amendments are the establishment of a federal constitutional court, the transfer of high court judges and the appointment of the chief justice from a panel of judges instead of the automatic elevation of the senior-most judge. It’s apparent that all these amendments are politically motivated and have nothing to do with claims of judicial reform.

According to the draft proposal now being circulated, all the political cases would be transferred to a proposed seven-member constitutional court, whose chief justice would be appointed by the prime minister. That would render the Supreme Court totally powerless. The two apex courts could create a dichotomy in the system, which could completely demolish the independence of the judiciary. And that seems to have been the main objective of the military-backed dispensation.
Ironically, the leaders of both the PML-N and PPP, the two major parties forming the ruling coalition, justify the formation of a constitutional court as being part of the Charter of Democracy endorsed by all mainstream political parties some two decades ago. This is a most incredible rationale for an undemocratic move eroding the very foundation of our constitutional democracy.
Indeed, the Charter did suggest the creation of a constitutional court but it was in a different context. In fact, the document emphasised the need to establish a balance of power between the judiciary and executive. It was not meant to curb the power of the top judiciary with the objective of strengthening non-democratic forces. Similarly, the provision of transferring high court judges is aimed at punishing outspoken and upright judges. It is yet another move to tame the judiciary.

The move to change the basic structure of the Constitution through controversial amendments has brought the dispensation into confrontation with the bar and the bench. Despite its failed attempt to bulldoze the amendments through, the government and establishment have not abandoned their plan. According to media reports, there will be another attempt to get the amendments passed before the chief justice retires.
It will also be a test for Chief Justice Qazi Faez Isa regarding the legacy he would like to leave behind. One hopes he will doff his robes next month, and thus not get drawn into any establishment-backed agenda to undermine judicial independence.
The writer is an author and journalist.
[email protected]
X: @hidhussain
Published in Dawn, September 19th, 2024