I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it.
Judge Learned Hand, The Spirit of Liberty, 1944
The government’s hectic efforts over the past weekend to push through a “constitutional package” do not appear to have borne fruit. For now, it does not seem to have the numbers.
But the question is broader and more problematic than just the elusive magic numbers: why is the government so desperate?
Short answer: it wants to (a) reconfigure the higher judiciary to ensure a sympathetic (read, pliant) Chief Justice of Pakistan with greater powers over the Supreme Court judges and (b) stuff the SC with a majority of amenable judges. This, again, is a means to an end, that end being its survival for the next five years and its subsequent re-election.
Let’s now get to the long answer.
There is nothing inherently wrong with a government bringing in constitutional amendments. In this case, though, there are two problems. First, this government was midwifed into existence through massive post-poll rigging and hence lacks legitimacy. Second, the constitutional package is specifically geared towards parochial political interests rather than an exercise at genuine reform.
A comparison is in order. In July 2023, Benjamin Netanyahu’s right-wing coalition pushed a bill through the Knesset (Israeli parliament) to clip the wings of Israel’s Supreme Court. The Netanyahu government’s argument was “that the judiciary interferes too much with legislation, is biased in support of liberal issues, and is undemocratic in the way judges are selected.”
The bill passed into law in July was dubbed the “reasonableness” bill and was meant to remove the power of the Israeli Supreme Court (and lower courts) to cancel government decisions deemed “extremely unreasonable.”
If the strategy works as planned, the establishment retains its control of the system while the political actors remain subservient and beholden to its largesse. This is why civil-military relations literature considers indirect control of a system by the military worse than an open coup d’état
Israel saw its biggest-ever demonstrations following this move, including declarations by the security forces personnel that they would not report for duty. The law, which was struck down by the Israeli Supreme Court in January this year, was considered a brazen attempt by Netanyahu’s coalition to serve narrow political ends.
Let’s get to the government’s “package” now and its whys and wherefores.
There are two contending actors fighting a war of attrition: PTI and the government-establishment chimaera. The PTI has primarily relied on the legal-constitutional framework to protect itself. The establishment-dominated duo has responded by legal and illegal means, including the arbitrary arrest and detention of opponents and other undesirables.
This approach has brought the higher judiciary into this fray. The government believes that certain judges take the Constitution and laws rather too seriously and that this excessive zeal hampers the government’s ability to deal with the PTI.
What are the objectives of the government? Ensure that the PTI and its leader, Imran Khan, are pushed out of the game; make further room for the current dispensation to complete five years and to ensure that come next elections, PTI is still out of the game and the current in-favour political actors continue. After ten years, biology takes over with Khan being 82 and PTI then is in either total disarray or a speck on the political landscape.
For this game of legal pretence to continue and for the establishment to stay in the shadows and control the system’s critical, strategic nodes, the government-establishment duo needs judges who can massage the Constitution to these ends.
Corollary: if the strategy works as planned, the establishment retains its control of the system while the political actors remain subservient and beholden to its largesse. This is why civil-military relations literature considers indirect control of a system by the military worse than an open coup d’état.
Oscar Wilde once told his editors that he would leave them “to tidy up the woulds and shoulds, wills and shalls, thats and whiches” so I will leave the legal technicalities to the jurists. But a few words about the “constitutional package” are in order, if only to flag the political machination that informs this presumably innocent move.
1. Extension in the judges’ retirement age. Apparently, despite his statements to the contrary, the current Chief Justice, according to the government, is amenable to this if the retirement age for all judges is extended to 68.
2. The likelihood of a three-year tenure cap for the CJP.
3. Change in the seniority principle for elevation to the position of the CJP. Insiders say there would be a panel of three or four names out of which one would be selected as the CJP.
4. Change in the procedure for selecting “appropriate” High Courts judges to the SC.
5. Increase in the number of judges to 23.
6. Amendment nullifying the SC decision on floor-crossing (Article 63 A), which disqualifies a member whose vote is not counted. This measure is likely to be retrospective to get the votes of any “PTI” members.
Eight judges issued a clarification on Saturday regarding the earlier judgment on reserved seats, which made it clear to the ECP that it could not refuse to recognise PTI seats. This was the SC’s warning shot across the government’s bow — if you play dirty and we know you are playing dirty, we retain the right to strike down your constitutional package
Additionally, there’s the issue of creating a Constitutional Court which will only deal with constitutional issues while the current SC will be confined to dealing with civil and criminal cases. The proposed CC is to have five judges. Insiders also say there will likely be changes to the Supreme Court (Practice and Procedure) Act, 2023, with the CJP regaining his sole prerogative for suo motu action and formation of benches.
On the face of it all this might seem ordinary. Given the context, this is an obvious exercise to neuter the SC.
The government wants to retain the current CJP, who is due to retire in October. This is because it fears the next incumbent won’t do the government’s bidding. Ditching the seniority principle in favour of a panel means the government can choose someone who, in theory, will play ball. An increase in the number of judges procured through the new procedure would mean getting favourable judges in the SC. Amending the SC decision on floor-crossing will allow the government to get the necessary numbers by beating PTI dissidents into defection. This is also useful for future vote buying.
The SC knows what the government is trying to do and eight judges issued a clarification on Saturday regarding the earlier judgment on reserved seats, which made it clear to the ECP that it could not refuse to recognise PTI seats. This was the SC’s warning shot across the government’s bow — if you play dirty and we know you are playing dirty, we retain the right to strike down your constitutional package.
The constitutional package is vital for the government-establishment duo, besides being time-sensitive. It is equally vital for the judiciary to block the package if the SC is not to be turned into the government’s handmaiden.
But there’s a limit to how far politics can be played through technical employment of legalities. If the constitutional package goes through and the SC overturns it, the country will be plunged into a deadlock. The situation could get worse if the government refuses to implement the SC decision. The ECP, despite the SC’s exhortations and reprimands, remains resolute in refusing compliance with the SC’s orders.
The judiciary enforces its decisions through a normative acceptance by the state of its legal-moral authority. Courts do not have their own police forces for enforcement. What happens when the government refuses to bow to the SC?
That’s when the institutions of the state, already disjointed, go into an open conflict. That’s when the armed actor can decide to throw out the legal-constitutional compact, kick aside the chessboard and start playing solitaire.
That’s when venalities lead to a country imploding.
No one wins. But everybody loses.