Amidst road blocks, air-tight security, deployment of paramilitary forces, uncertainty, intense political tension, and high stakes - a sealed red zone witnessed much political history in the last week. This type of frenzied chaos can only be described through Vladimir Lenin’s golden words: “There are decades where nothing happens, and there are weeks where decades happen.”
Islamabad just witnessed such a week.
Why now?
It is easy to say that this amendment was done just to ensure that a certain candidate does not become the next chief justice of the Supreme Court. This explanation may be plausible and may be true to an extent. However, it does not pay attention to the decade-long era of “judicial activism” that rolled down the glamorous red carpet laid down by Iftikhar Muhammad Chaudhry and those who followed him through court room number 1. To jog one's memory: Reko Diq, dam fund, hospital inspections, Corona policies, power plant contracts, foreign policy, officer evaluations, and whatnot. Prime ministers ousted with fancy analogies, one closely related to the Sicilian Mafia, and some blessed with anointments of ‘Sadiq and Ameen’. Constitutional Articles - namely 63A - interpreted, rewritten, and then reinterpreted. Election symbols were taken away at convenience and given back with much joviality when the symbols were no longer needed. Multiple party leaders were not given relief when under the cosh - as is the case presently - and are then given a clean chit by the same masters. The charge sheet is endless. This was a decade where nothing happened - the parliamentarians scorned in anger and yet kept taking blows. The courts swayed in the direction of where the winds blew the strongest.
Like all great adversaries, the parliament and the disenfranchised parliamentarians have waited patiently. Many critics are rightly linking the timing of this amendment to personal preferences and a ploy of the present system to cement control. However, observing the injustices suffered by all major political parties at the hands of the superior court in the past decade - one does not even have to mention the relentless granting of legitimacy to several military rules before that - an amendment of such a nature was indeed coming. The writing was on the wall. All it needed was a trigger and some sort of a situation in which the establishment would back such an amendment. For the last part of the decade, the establishment has carefully used the judiciary as a tool to do their bidding. In such a scenario, there was no space for any political government to enact massive judicial reforms.
Yet, politics is the art of the possible. Circumstances and a spectacular renegade on a carefully constructed project finally led the judiciary and the establishment on a direct collision course. This conflagration has brought the opportunity and the space to table such an amendment. Parliamentarians, across the board, harbouring feelings of injustice and tyranny at the hands of an unelected majority - gladly accepted the invitation. Can one blame them? Has the Supreme Court been fair and impartial to any political party on a consistent basis? The answers are clear and the proof is in the pudding.
‘Independence’ of the courts sacrificed or not?
There are two parts to this story. The first relates to the selection of the CJP and Supreme Court judges by the “Special Parliamentary Committee” - which consists of 12 members from different political parties depending on their proportionate representation in the Senate and National Assembly. This committee requires a two-thirds majority of the 12 members to forward a name from the top three senior judges on the roster of the Supreme Court.
Firstly, this means that a simple majority government will have to seek votes from the opposition benches to complete their formality - granting them a key voice and input in the selection of the Chief Justice. For example, a vote from a Muttahida Qaumi Movement-Pakistan (MQM-P) MNA in the first special parliamentary committee gives them a uniquely important role in completing the eight votes threshold. Mathematics will vary with new election results in the future, but every major party will remain a relevant key stakeholder and will not be bypassed in discussions of the appointment of the CJP. The fixed terms of three years will give much-needed stability and command to the head of the apex court, and it will be easier to stamp authority. The CJP cannot be removed except for exceptionally gross misconduct.
Crucially, there will be no one ‘waiting in line’ and readying himself for the top job by toeing their own line and inventing their own brand of judicial politics. Imagine being in a job that requires work of the highest order and knowing two years down the line that one’s promotion is inevitable - would that not affect work ethic and motivation? Many point out that now judges will kowtow to the executive branch in order to get their much-coveted elevation.
However, they forget that even in the most successful of democracies, it is the executive that nominates the top judges. The President of the USA nominates judges of the Supreme Court and the Senate approves this nomination by a simple majority. The Italian Parliament directly nominates five members of the Italian Constitutional Court. Justices of the Australian High Court, the highest court in Australia, are appointed by the governor-general on the formal advice of the attorney-general following the approval of the Cabinet. The examples are endless and the argument that the executive or legislature does not have a role to play in judicial appointments does not hold up.
The case of fixing ‘constitutional benches’ is perhaps more murky in the second part of the story. The newly added article 191-A explicitly reads: “There shall be Constitutional Benches of the Supreme Court, comprising such Judges of the Supreme Court and for such term, as may be nominated and determined by the Judicial Commission of Pakistan.”
The Judicial Commission of Pakistan (Article 175A) has also been reconfigured, the new commission will have 13 members - with the total members belonging to the judiciary limited to five, which means that even full judicial consensus on fixing a certain bench will be utterly futile. This is perhaps the main point where the separation of powers has been trampled upon. It would have been right that the Practice and Procedure Act 2023, in its original form, in which the CJP and the next top judges would set the formation of the constitutional benches. It would have been a good check on the CJP’s power. Here, the parliament has perhaps gone overboard and crippled judicial discretion.
Should judges take the blame for passing this amendment?
The Supreme Court’s pedigree has continued to diminish after the initial goodwill generated in the post-Musharraf era. Many judges have been willing collaborators to oust elected leaders. They have incessantly used their Suo Moto powers, now taken away, to strong-arm governments and influence policy. Judges have rarely shown institutional unity, and there has been always ‘infighting’ between different ideological and political groups in the Supreme Court.
They have happily come to the aid of the establishment’s grand schemes and disillusioned every political party in the process. Their judgements have been puzzling and no consistency has been applied.
Whether the amendment has any merit or not, one thing is certain the Supreme Court has suffered from unnecessary controversies and allegations of clear bias over the years. Friction on the benches has poured out to such an intensity that there are dedicated YouTubers who prey on this gossip and earn their paychecks by reporting on the daily rumblings of Pakistan’s apex court. Should we blame the social media era of Pakistani politics for converting a legal court into a political amphitheater or should we blame the judges?
Will this be good for democracy in the long term?
Imagine an elected Prime Minister is no longer on the coveted ‘same page’. The establishment wants to get rid of the incumbent. They will now no longer just need to align the CJP or a small group of like-minded judges. The elected prime minister, through the Judicial Commission of Pakistan, has a fighting chance.
Out of the 13 members, the PM can potentially count on the following; the law minister, the attorney general, one member who is either non-Muslim or minority, and two members of parliament from the treasury benches. So, he/she needs to win two votes of the remaining eight - including a Pakistan Bar Council member - to avoid bench-fixing. The establishment will first need an iron fist approach to win the battle for the formation of the constitutional bench and then manage the bench later on for the needed verdict. The aforementioned hypothetical situation is nothing more than a potential simulation, but it does the job of showing the potential of this amendment to be a better protective mechanism.
Many will dismiss this simulation as a theoretical soundbite - as there is always a mismatch of power when the ‘one page’ does get ripped up. After all, no Prime Minister has been able to stop the inevitable.
Conclusion - a decisive victory for the treasury benches for now
In the short term, the government has finally wrapped up a much-needed legal victory. The PPP’s savvy collaboration with the JUI-F saw an exchange of pleasantries and praise and let PML-N take a back seat - Mian Nawaz Sharif’s decision to only participate via 20 seconds of impactful poetry summed it up. As for the PTI, a loss of communication with their leader in Adiala Jail led to a confused strategy. Maulana Fazulur Rehman made them sing his praises - a far stretch away from the days of the ‘diesel’. Social media had dubbed this contest a ‘Zero-Sum’ game and the result will now definitely have an impact on the rank and file of PTI.
Now we wait to see whether this amendment will lead to another decade in which nothing happens; or should we expect more weeks like the one we had - there are murmurs of a new lawyers movement. How long till the number 27 shows up on Pakistan’s constitutional board? A decade or a week?