I have been trying to locate decent legal arguments from the proponents of the proposed Federal Constitutional Court (FCC) that would stand its ground and would be worth engaging with but all I have been reading is the regurgitation of political rhetoric, use of the ethnic card, and emotional tapping into our chequered history and the judiciary’s role in complicity with the powers that be.
The disingenuity with which they write about the need for the FCC shows that they are likely motivated by past trauma, fear, insecurity, and personal vendettas against the judiciary as a whole, and are now willing to use that as an excuse to control, ‘appoint’ and ‘monitor’ judges with the sole objective to tame them or even to punish them for their past and potential future actions that don’t fall in line.
In effect, what they seem to be doing is advancing a narrative against the Supreme Court to suggest that they are the unaccountable villains, the “big bad guys” who, if the Parliament can replace with their handpicked judges in the FCC, (who mind you, will not be imported from outer space but will be from the pool of the same retired or sitting judges or those qualified to be judges) then provinces and citizens will get equal representation and speedy justice. Voila! Suddenly, all our problems of delay in litigation will magically vanish because another handpicked forum will be there to take care of specialised cases of a constitutional nature.
Never before have the people of this country been told such blatant nonsense as this and I will tell you why:
The proponents of the FCC fail to explain how and why the handpicked judges of the FCC will act any differently than how they would act as judges of the Supreme Court and what guarantee they have that they will not replicate the issues they are identifying in the judges of the Supreme Court in cases involving the government? Are they relying on the fact that the cherry-picking they are reserving for themselves by handpicking judges would be sufficient protection to guard against them going rogue against the government of the day? This brings me to question this desire in the first place, why would the parliament wish to appoint judges aligned with the ruling government and not see how problematic that is?
The parliament will surely be fueling the probability of partiality and increasing its perception if the amendment to handpick judges and dominate the judicial appointments process is indeed passed
The only answer that comes to my mind is that understanding of the state, its three pillars (executive, judiciary, and parliament), the rule of law, separation of powers, and independence of the judiciary is completely lost on them. Also, they are confused as to the role of the judiciary as a whole. But the bigger confusion for them appears to be in understanding that the higher judiciary (high courts and above) does not operate and is not quite the same as the subordinate judiciary. There is a huge difference between the two types of judiciary which is completely lost to the proponents of the FCC. This means that the lens with which the subordinate judiciary is viewed cannot be used to assess the functioning and role of the higher judiciary. You just cannot compare apples with oranges.
The subordinate judiciary is recruited via a competitive exam and is ‘recruited’ under judicial service rules of the provinces, like any other posts for civil service for the government. These are positions for a ‘career’ in judicial service. It is in this context that their promotions, transfers, and postings are regulated through the service rules. As opposed to this, the ‘appointments’ for the higher judiciary are appointments to a constitutional role and the judges therein serve not the government, but the Constitution. They have a mandate under the Constitution and since they are not in service to the government, their independence is to be safeguarded so that when they decide matters of law within their constitutional jurisdiction or in cases where the government is a party, the judges are not even perceived to be partial or susceptible to any influence by the government. It is for this reason they have a secured tenure in the Constitution itself and they cannot be transferred at whims and will of the ruling government.
If this would be amended to allow the government or the Parliament to have that kind of control, the impartiality of the judges will be under a serious question which will undermine the rule of law and access to justice in the country for all citizens as a whole. If the citizens perceive that a handpicked judge, who is at the mercy of the ruling government and political figures as his or her transfer and evaluations depend on them, then how will they expect justice from them particularly, where citizens have a claim against the government and the government or its department or any public body is made a party in the case? The Parliament will surely be fueling the probability of partiality and increasing its perception if the amendment to handpick judges and dominate the judicial appointments process is indeed passed.
The proponents of the FCC say that “The Supreme Court has failed to be a neutral and non-partisan forum for adjudication of disputes between Islamabad and the provinces or between two or more provinces. The FCC, as proposed in the 26th Amendment, fills this gap." They also say that, “If the 26th Amendment is passed, the provincial and federal governments as well as ordinary citizens will have a powerful and neutral forum to turn to,” but they fail to explain how an FCC with handpicked judges of the government will be perceived as a neutral and non-partisan forum in disputes between citizens and the government?
The Charter of Democracy was agreed as a pushback to the authoritarian regime and dictatorship of its time. Even in that context, the judicial appointment process for the FCC was stated to be the same as that was in place at that time for other courts
Another smokescreen that the proponents keep blowing is with regards to ‘efficiency’ in the judicial sector, which they say would come because somehow the backlog of cases will magically disappear once a specialised court dealing with constitutional matters is established. Nevermind the facts on the ground and studies that suggest that delays in the system are due to several factors at the grassroots level and several external factors such as lawyer’s strikes, existing vacancies in courts, the culture of adjournment, frivolous litigation, outdated procedural laws, poor case management and lack of proper training, infrastructure, and resources. To add to that, as Dr Maryam Khan also explained in a session on constitutional courts, tribalisation has not resulted in the efficiency that was expected of it. Pakistan has experienced this before in the shape of numerous specialised courts and tribunals like the consumer courts, banking courts, gender-based violence courts, child courts, etc. and the pendency problem remains an issue. Why we don’t learn from history and our past experiments is a moot point however, one thing is clear the government’s grand idea for installing another forum in the shape of FCC is just like making another underpass to ease the flow of traffic, which only addresses the symptom and not the cause.
The proponents, however, do not stop there. They go many steps forward and in the quest to establish another forum with handpicked judges, they also aim to permanently change the way judicial appointments are made, reserving for themselves the greatest space and role in terms of number whilst eliminating the role of high court chiefs from appointments in the high courts and also significantly reducing the chances of female lawyers being appointed to the Judicial Commission of Pakistan (JCP) as a member, as they insert technical barriers like 20 years experience and license as an advocate of the Supreme Court. There are no provisions to ensure equal representation of women in the JCP or of those from diverse communities, backgrounds, and differently-abled persons. The proposed amendments are therefore actually the anti-representation of women and other marginalised communities.
Finally, a word on historical context which is completely missing from the imagination of the drafters and proponents of this draconian amendment. For starters, the Charter of Democracy was agreed as a pushback to the authoritarian regime and dictatorship of its time. Even in that context, the judicial appointment process for the FCC was stated to be the same as that was in place at that time for other courts. In that, the Chief Justice used to recommend a panel of names for appointments to the President. Thereafter, the 18th and 19th Amendments of the Constitution gave us the current process for judicial appointments in the shape of Article 175-A. Both, before and post 18th amendment, the recommendation for judicial appointments for constitutional roles in the high courts Supreme Court, and the Federal Shariat Court has been the prerogative of the Chief Justice of Pakistan or the JCP on the same ground that for the perception of an impartial judiciary, the separation of powers was to be maintained and the parliament and government could not be seen to be cherry-picking judges in their cause, for their vested interests.
By stripping the proposed FCC of its ability to call into question constitutional provisions or amendments, the government is attempting to create a kind of constitutional court, the likes of which do not appear to exist anywhere else
Today, the Supreme Court is not colluding with the powers that be they are asserting their independence which one would expect the government and parliament to laud but it seems they are unhappy with this expression of independence and want to ensure that the judiciary does not remain impartial and instead always acts in their interest, which is why they want to now ensure that they control or replace them as forums. They seem to be missing the days when the judges used to collude with the powers that be to achieve desired political results. Although they keep citing the instances that went against them as a basis to assert control, what in effect they want to do is to be rest assured that their handpicked judges are deciding matters in which they are involved so that they always appear to be partial in their favour and help them achieve desired political outcomes. It’s like rigging elections is no longer sufficient so now there is a need to rig the courts as well.
With regards to the evaluation: scrutiny of the judges is already embedded within the existing judicial structure. We know how references have been filed against some of them before the Supreme Judicial Council, so to say that there is no accountability of judges is also misleading. Accountability ought to be greatest for those who come with public votes for public offices and they of all should never be in charge of appointing the judges.
The FCC, in all jurisdictions where it has been established, is supposed to be a watchdog over the Parliament and the laws they make. By stripping the proposed FCC of its ability to call into question constitutional provisions or amendments, the government is attempting to create a kind of constitutional court, the likes of which do not appear to exist anywhere else, just because the idea of a constitutional court was written as a point in the Charter of Democracy, it doesn’t mean that the proposed 26th amendment should be blindly supported. It needs to be read in its entirety to see how this is an attempt to permanently tilt the balance of power in favour of the ruling government leading towards 'rule by law' rather than 'rule of law'. Not only the constitutional supremacy, judicial independence, and separation of powers -- which are core pillars of a democratic state -- are being undermined by the amendments as a whole, but also civilian rights under Article 199 of the constitution are being suppressed in the name of national security. This lollipop of a solution, the smokescreen to efficient justice is nothing but a blatant lie. We need reforms but not the ones that come at the cost of these core principles.
Do better.