Everything in an unflawed, functioning democracy is supposed to be about how the people of that country can benefit fully. But in Pakistan, which is only a democracy in the name, it is all about how those in the power corridors can be served best.
The 26th Constitutional Amendment was passed in the backdrop of the UN Human Rights Committee releasing its second review on Pakistan. According to this review of the ICCPR or the International Covenant on Civil and Political Rights, human rights violations and abuses remain a rampant and unchangeable reality in the country.
As the 26th Constitutional package is being questioned for potentially subjugating the judiciary, it was also called out by rights committee for violating Pakistan’s obligations under Article 14 of the ICCPR, which necessitates that all persons “shall be equal before the courts and tribunals, and in the determination of any criminal charge, rights and obligations in a suit at law,” will be upheld and “everyone shall be entitled to fair public hearing by competent, independent and impartial tribunals established by law.”
Pakistan ratified the ICCPR in 2010 and its first review took place in 2017. After 7 years, the second review this month only pointed towards a further deteriorating human rights situation. While expressing its concern, the ICCPR, in an X post dated 22 October, cautioned against the constitutional amendment bill as a potential threat to judicial independence.
The crux of the developments from last two weeks constitutes what looks like authorities attempting apparent judicial reforms through a constitutional amendment, while employing unconstitutional ways and coercion to get it passed. As to how unjust means can be deployed in the supposed pursuit of a just system that would lead to sweeping justice, as is being claimed, is anyone’s guess.
Pakistan’s parliamentary performance has never been covetable, dominated mostly by rowdy walkouts, tussles, scuffles and verbal communication loaded with insults, slurs and expletives. Horse-trading and floor-crossing have also always been a routine part of affairs but the use of ‘brute force,’ as one witnessed before the passing of the 26th Amendment, the so-called, constitutional package heralding judicial reforms, has broken all previous records in terms of its high-handedness, as there were allegations of harassment and the lawmakers disappearances, who miraculously appeared on the treasury benches in the dead of the night to facilitate the constitutional amendment’s passage. Akhtar Mengal of BNP alleged that his party senators were abducted and abused into supporting the amendment.
If the serving judges of the apex court are also going to occupy constitutional benches, how will it leave them with any more time to attend to the piled up pending cases?
During the coalition government’s politicking to muster support for the amendment, Bilawal Bhutto had vehemently asked JUI-F and the opposition to support the package or be warned of the use of “brute majority,” which later, in fact, transgressed into the use of brute force employed to bulldoze the amendment through both the houses. And this came amid government’s claims of having reached consensus with the opposition after intensive lobbying, month-long political negotiations and fervent politicking.
It should be a scathing indictment that Noor Mukadam’s birthday also fell on the heels of the passing of this much-touted amendment, as, the Supreme Court of Pakistan was urged, the umpteenth time, by the slain 27-year old’s crestfallen father to finally take up his daughter’s murder case, which has been pending for almost two years in the apex court. It is relevant to ask at this point if the government of the day will be the only beneficiary of the 26th amendment or will the people of Pakistan also receive some rare relief from this so-called judicial overhauling and get to witness speedier trials and swift dispensation of justice that is just and not a jest.
It is being claimed that the constitutional benches will ease off the burden of the regular benches and, hence, cases lying pending in the apex court for years and decades will finally see the light of the day. But if it is the serving judges of the apex court who are also going to occupy constitutional benches, how will it leave them with any more time to attend to the piled up pending cases?
The ruling coalition has hailed this amendment as great success, declaring it a triumph of democracy and the supremacy of the parliament. Democracy is about civil and human rights, about the unhindered deliverance of justice and there’s not much to celebrate for us if justice will continue to be evasive, favouring only the mighty as always, while the Noor Mukadams, the Sara Inams and many others like the father and daughter victims of the Karsaz tragedy never get justice.
Whenever the Have-nots are pitched against the Haves in a court of law, the trajectory of ‘law taking its due course’ and/or going awry is painfully predictable. It is easy to see how the law is choked and its natural flow kept under check in our unjust criminal justice system. The pursuit of justice is also too complex, expensive and time consuming, with stories of injustices easy to forget by a people bogged down by their own set of challenges. According to US rights activist Bryan Stevenson, the opposite of poverty is not wealth, it is justice. This quote applies aptly to how justice is dispensed in Pakistan, reserved only for the wealthy.
The International Commission of Jurists (ICJ) has derided the passing of the 26th Constitutional Amendment into a law, terming it as a “blow to judicial independence.” It has expressed concern over the swiftness with which the bill became an act, the fact that draft amendments were kept secret, and it was not shared with the public, terming it blatant violation of public rights. How can people be kept in the dark about a legislation supposedly enacted to improve people’s lives, especially considering how eager our leaders are to tout even the smallest act of public service that they might have, mistakenly, performed?
Other human rights groups are also critical of the manner in which the amendment was passed, secretly and in less than 24 hours, violating the independence of the judiciary and subjecting it to executive and parliamentary control.
The Human Rights Commission of Pakistan (HRCP) has expressed fear regarding the manner in which constitutional benches are to be established, raising serious concerns that the credibility of these benches might be compromised by direct political influence. Also, the composition of the special parliamentary committee nominating the chief justice gives the government an unfair advantage according to the rights’ body.
Various bar associations have, so far, rejected the constitutional amendments too, questioning its legitimacy. It is yet to be seen how the new chief justice, who takes his oath today, reacts to the contradictory amendment. But then those who got their ascent through the amendment would probably have no will to question it. Given the long-running feuds within the SC and between the various state institutions, the divisive and divided legacy of the outgoing CJP, we might fear a new stand-off between the legal fraternity and the government.
Superseded judge Mansoor Ali Shah in a letter, dated 24 October, to Chief Justice Qazi Faez Isa, revealed that he would not participate in special benches formed by the new committee and will only attend sittings of the regular benches to hear cases of ordinary litigants in the larger public interest. The puisne judge also included Sir Thomas More’s words in the letter, using this quote: “I think that when statesmen forsake their own private conscience for the sake of their public duties, they lead their country by a short route to chaos.”
Adding to this quote the justice remarked that we often forget when in power that people of this country are watching our actions and that history never forgives. If only all and sundry remembered this.