For months, we had been hearing about the coveted 'judicial package' that was coming. But then we also heard about the denials of the same from the stakeholders. This did not stop the rumours and murmurs from spreading. One day, we would hear about how the package would extend the tenure of the chief justice of Pakistan; at other times, we would hear about the number of judges being extended within the Supreme Court of Pakistan. Several versions of what the possible reforms could look like would float around simultaneously as if someone were testing the waters. Speculations arose and abounded, making way for suspicion more than curiosity. What was so secretive about the reforms anyway? More importantly, why was there the need to keep them under wraps when the entire objective of a parliament is to have public debate on issues before legislating on them? But was there even going to be a debate? No one was sure. Farcical, yes, I know! I would laugh if it was a circus, but it was not, though it looked like one.
As the number game unfolded before our television screens, our social media was ripe with comparisons with how Pakistani politics could give Netflix a run for its money any given day. Hair-raising, nail-biting suspense kept viewers glued to their screens. Will he, won't he? All eyes were on the cleric, the lone crusader it seemed, and an unexpected hero upon whose acquiescence the whole game would have been up for everyone but one had he but agreed. Lucky for this nation, the cleric stood his ground, and on that day, he didn't let the ship and everyone else on it sink, at least not then, not just yet. He made them lose so we could all win, at least for now, but for how long?
The constitutional package that eventually did make its way out into the media, and if it is to be believed as authentic, is something else completely! For a country that has had a chequered past, between democratic and military dispensations, and several military coups holding the Constitution in abeyance, providing for provisional constitutional orders (PCO), etc., this kind of an abrogation was unseen, unheard of ever before in our history because this package was dressed as 'restoration of balance' and 'parliamentary sovereignty' as opposed to direct suspension and was being led by political faces as opposed to dictatorial heads. Nothing like this could ever have been even imagined before, and that too on the day that they call the day of democracy! Ouch!
The blatant and unapologetic disregard for the very fundamentals, like the separation of powers, independence of the judiciary, and constitutional supremacy on which the state stands, were thwarted with the stroke of a pen. Whose pen? I am curious to know who even came up with this draft. I want to know if any lawyer would openly come out and own his or her advice for any part of these proposed amendments to the Constitution of Pakistan.
Was any legal opinion on any of this sought at all by the framers of this masterpiece, or were they going to shake the entire structure and design of the courts, the dispensation of justice, fundamental rights, judicial appointments, etc., without any legal input? If so, clearly, 'nothing about us, without us' is a concept the framers are unfazed by, it seems! And then, I would be expecting and asking too much from them when I insist on the inclusion and meaningful participation of women and other stakeholders in all matters related to the justice sector. When they didn't even get their lawmakers and ministers on board and the usual privileged male stakeholders, what hopes and chances do I have for those 'others' who remain invisible to all?
The bar had demanded a criteria for judicial appointments, transparency in the process, and until then, appointments based on seniority to reduce the cherry-picking. Instead, what it got was even more claim to arbitrary powers only this time, to be exercised by the executive as opposed to the CJPs
This constitutional package primarily sought to establish a Federal Constitutional Court (FCC) over and above that of the Supreme Court of Pakistan (SC) with the idea that it would take on the original, advisory, review, and appellate jurisdictions in matters involving constitutional interpretation, disputes between federal and provincial government and writ petitions under Article 199 of the 1973 Constitution, amongst others. A move that would effectively cut to size the Supreme Court of Pakistan.
However, even with the FCC, the proposed amendments take a cautious approach and state that their judgments under Article 184 of the Constitution would only be declaratory in nature and further in Article 239 that the constitutional provision and amendments shall not be called into question by any court including the FCC. In that, the courts will only be able to interpret but not strike down any act of Parliament true to the desire of the framers of this amendment to impose 'parliamentary sovereignty' and tilt the balance of separation of powers permanently.
This is notwithstanding that in a constitutional dispensation such as ours, where there is a written Constitution, the Constitution is supreme, and the legislature must legislate within the framework of the Constitution. This is not to suggest that the Constitution can never be amended, it has been amended 25 times before, but this is only to stress that the reform cannot dispense the fundamental balance and basic premise of democracy. For instance, the legislature-even unanimously-cannot give itself the power to never hold elections as that goes against the core of democracy - and principles listed in the Constitution. Likewise, judicial independence is also a salient feature of our constitutional dispensation. Hence, the judiciary cannot be made subservient to the executive or even the Parliament (trichotomy of powers, etc).
Not only that, but the reforms also envisage packing the Judicial Commission of Pakistan (JCP) – the body responsible for judicial appointments to the high courts (HC), the Federal Shariat Court (FSC), and the Supreme Court (SC), with legislative and executive figures, diminishing the majority of the members from the judicial and legal side.
For the appointment of the Chief Justice (CJ) of the SC, a new National Assembly Committee comprising members from the Treasury and Opposition shall cherry-pick one judge from among three senior judges of the SC. Even the appointment of the first CJ of the new FCC will be done by the President on the advice of the Prime Minister. This is extremely unfortunate, because the bar had demanded a criteria for judicial appointments, transparency in the process, and until then, appointments based on seniority to reduce the cherry-picking. Instead, what it got was even more claim to arbitrary powers, only this time to be exercised by the executive as opposed to the CJPs.
Constitutional courts were developed as a push-back to authoritarian regimes, not to cement them further, which is what is happening in the case of Pakistan, where they are being used to orchestrate a constitutional coup on the judiciary instead
While we stand for structuring discretion and transparency in judicial appointments and oppose seniority as a principle in the appointment of judges, we also stand for the independence of the judiciary and do not condone the transfer of the discretion to arbitrarily appoint judges into the hands of the Parliament alone, especially of chief justices.
Interestingly, some of the bars have lately echoed the demand for a constitutional court, having first been introduced in the Charter of Democracy between Benazir Bhutto and Nawaz Sharif in 2006. Never mind that the court that the Charter of Democracy envisaged was very different from the prototype that has been put forward in the proposed amendments. This a point which even Bilawal Bhutto Zardari conceded in the aftermath of their failure to pass the impugned amendment while talking to the media, but despite that was willing to go ahead with the amendments had the Maulana agreed.
The proposed amendments treat the high courts and its judges with even greater disdain than they do the SC, by taking away their agency to consent before being transferred to another jurisdiction and eliminating their role from the judicial appointment process in the high courts (except in case of appointment of the Islamabad High Court judges where they seem to retain some role). The JCP will also be empowered to evaluate the performance of HC judges annually and refer them to the Supreme Judicial Council if they continue to underperform. It leaves it to the JCP to come up with the criteria and assessment for evaluating the performance of judges. Furthermore, under the proposed Article 186A, the FCC would also be empowered to transfer cases under the writ jurisdiction of a high court, including for the enforcement of any of the fundamental rights conferred by Chapter 1 of Part II of the Constitution (Article 199) to any other high court or itself.
One of the most ironic things about this draconian amendment is that not only have its framers gone against the spirit and foundations of a democratic state but have also gone against the spirit of constitutional courts as well. Constitutional courts were introduced by Hans Kelsen, an Austrian jurist post World War I in Austria. After World War II, these courts became popular in Europe to overcome the legacy of dictatorial regimes. Their objective was to guarantee the supremacy of the Constitution over parliamentary enactments. 'In the wake of the world wars, safeguarding the basic rights established in the constitutions and the constitutional balance of powers meant being able to exert control even over the highest expression of the will of the representative organs including parliaments, and thus on the laws themselves. Thus, these courts were entrusted with reviewing the constitutionality of statutes and voiding them if they were unconstitutional. It means they were developed as a push-back to authoritarian regimes, not to cement them further, which is what is happening in the case of Pakistan, where they are being used to orchestrate a constitutional coup on the judiciary instead.
As women in law, we were pushing for representation and reduction of technical barriers to eligibility for appointments and candidacy, such as reducing the minimum age requirements and active legal practice experience requirements for judicial appointments and bar elections, etc. What we got was, however, increased stress on seniority, enhanced age and experience requirements
On the one hand, the independence of the judiciary is shrinking; on the other, the bid for members of the Election Commission of Pakistan (ECP) to continue in office until their successors are found is expanding. Through these amendments, ECP members could also be reappointed by a simple majority in the National Assembly and the Senate. Moreover, acts of Parliament related to the extension, reappointment, etc., of armed forces have also been given a constitutional status and would require a two-thirds majority to be amended. The tilt in the balance of powers is glaring, and the beneficiaries stand exposed as clear as crystal. We believe that reform processes must be transparent, inclusive, participatory, and geared towards strengthening fundamental rights, the rule of law, democracy, and democratic values and not the other way around, because then it is not reform; it is hegemony.
Somehow, every time we reform we also love to preserve the old boys club and gatekeep access to decision-making roles for women, minorities, and young lawyers. Just as the bar was fixated on criteria for judicial appointments and seniority in the interim, we, as women in law, were pushing for representation and reduction of technical barriers to eligibility for appointments and candidacy, such as reducing the minimum age requirements and active legal practice experience requirements for judicial appointments and bar elections, etc. What we got was, however, increased stress on seniority, enhanced age and experience requirements i.e. from 10 years to 15 years' experience as AHC for appointment as a judge of the HC and 15 years' experience as AHC plus enrollment as ASC for appointment as a judge to the SC. Only the age in case of appointment as a judge of the HC has been lowered from 45 to 40 years. For the appointment to the JCP as a member from the bar, there is also now the added requirement of being an advocate of the SC with 20 years of experience, which was previously not the case. This reduces the pool of women, minorities, and young lawyers from being appointed. Furthermore, FCC judges can be appointed from a pool of retired SC judges, sitting SC judges, or from ASC with 15 years of experience.
All this stress on being an ASC and other technical requirements shows how far female lawyers have been kept from any consultations on this bill. Women make up only 4% of advocates in SC because of the discriminatory licensing regime, arbitrary interview schedule practices, and unequal allocation of work in law firms that offer them fewer opportunities to appear and argue before the courts to meet the technical requirements of several cases as counsel for their licences as ASC. But just as the amendment's framers did not bother initiating any study into understanding what the actual reasons for the growing backlog of cases are (one of their stated reasons for setting this up in the first place), whether we even need a new court for that and will that even be effective, they didn't bother looking into the factors that hold women back from reaching the pool of advocates of Supreme Court before making that an eligibility benchmark for membership to the JCP and appointment as a judge to the SC and FCC etc. Perhaps that was the goal all along, to gatekeep access and keep them out as far as possible. For us, the message is clear: women, minorities, and young lawyers are not welcome in decision-making roles.
These challenges that hinder women's access to the justice sector have been said loud and clear in several conferences, sessions, and seminars, as well as articles and position statements in the recent past, including at the Asma Jahangir conferences, which the sitting law minister spearheaded. What excuse has he to volte-face on these like this and not make any efforts to use his position to push for greater transparency, access, inclusion, and fair representation? Shall we still expect him to be making rosy speeches at the next Asma Jahangir conference?