How judiciary in Pakistan has been caged by the Army

Almost immediately after the passage of the 26th Amendment of the Pakistan constitution, the second senior most judge of the country’s Supreme Court, Yahya Afridi, took the oath of office as the Chief Justice of Pakistan on October 26. A day earlier, Chief Justice of the Supreme Court, Qazi Faez Isa, had retired. The appointment of Afridi was in accordance with the 26th Amendment.

Under this, the Chief Justice of the country is to be chosen by a Special Parliamentary Committee of twelve members, which will be constituted on the basis of “proportional representation” of the strength of the political parties in Parliament. This means that the ruling party or a ruling coalition will really make the choice of the Chief Justice of the country. Naturally, the members of the committee will be nominated by the party leaders.

The Committee is constitutionally obliged to choose a Chief Justice from among the three senior most Supreme Court judges. This is a departure from the tradition that has been followed for the past 14 years, under which the senior most Supreme Court judge became the country’s Chief Justice. The committee that chose Afridi consisted of four members of the Pakistan Muslim League (N), three from the Pakistan People’s Party; Pakistan Tehreek-e-Insaaf had two members; Sunni Ittehad Council; MQM; and JuI (F) had one each. This committee overlooked the claim of the senior most judge, Mansoor Ali Shah, to choose Afridi.

Many observers feel that the real reason for the constitutional amendment was to keep out Shah, who is believed to be close and sympathetic to the jailed but still popular PTI chief and former Prime Minister Imran Khan, from the Chief Justice’s chair. At this time, when Khan and Army Chief Asim Munir are involved in a fight to the finish, Munir could not afford to have a Chief Justice embarrassing either the Army or the present coalition government, which is led by Shahbaz Sharif, PML(N) leader and brother of the party supremo Nawaz Sharif.

The Army’s hands were nowhere to be seen when the constitutional amendment was being discussed, but in view of its influence and past history, it can be safely assumed that it had ensured that the ruling coalition was able to get a two-thirds majority for the passage of the amendment. It is likely that it also persuaded the PPP to go along with the appointment of Afridi. It is believed that while the PPP was in favour of the amendment, it wanted the tradition of the appointment of the senior most judge as Chief Justice to be respected. Perhaps to show their disappointments, Bilawal Bhutto Zardari and both the Governor and Chief Minister of Sindh were not present at Afridi’s swearing-in when the country’s major political personalities and the army chief were.

The amendment has not only changed the manner of selection of Pakistan’s Chief Justice; it has also made two other significant changes that further emasculate the judiciary. Till now, the appointments of judges of High Courts and the Supreme Court were made by a Judicial Commission in which judges had a majority. The Commission’s choices were sent to a Parliamentary Commission but if that body did not agree with the Judicial Commission and sent the nominations back, the Judicial Commission had the authority to reiterate its decision, and that had to be respected.

Now, the Judicial Commission to choose judges of these courts will consist of the Law Minister, Attorney-General, two members of the ruling party/coalition, two members of the opposition and five judges. This means that the power of appointment of judges has been taken away from the judges and is now virtually with the ruling party or coalition. This makes the position of the Prime Minister vital in the judges’ appointment process, and as Pakistani Prime Ministers always look over their shoulders to seek the nod of the army chief, he will indirectly have a more major hand in the appointment of judges.

The amendment has been most innovative in empowering the Judicial Commission to establish constitutional benches in the Supreme Court. While it is clear that constitutional amendments and the challenge of laws or executive actions as violative of the constitution will fall within the ambit of these benches, only time will tell how these benches define the ambit of their jurisdiction. The constitutional benches amendment is obviously a compromise, for the initial instinct of the ruling coalition was to establish a constitutional court. There was a great deal of opposition to such thinking in the lawyers’ community, for it would have certainly meant that the Supreme Court’s importance would have truly shrunk. But this amendment means that the Chief Justice’s powers, as master of the roster, which were earlier compromised by the setting up of a committee of the Chief Justice and the two senior most judges to decide on the setting up of benches, have been further compromised. Indeed, the idea that composition of constitutional benches will now be done by the Judicial Commission is a complete intrusion into the powers of the Supreme Court itself.

In addition to all this, the Judicial Commission will have the authority to assess the performance of judges. This is unprecedented. Till now, the superior judiciary is not monitored by other branches of state. Now, the Pakistani superior courts will always have to be mindful of the views of the country’s political executive. And this will only be the constitutional position. In the past, Pakistani courts legitimised army coups through the dubious doctrine of necessity. They read that doctrine into case law. The constitutional advance after Musharraf was ousted made army coups traitorous acts for which the death penalty could be awarded. Musharraf was charged with traitorous conduct, but, of course, the Army ensured that the case could never come to fruition. Musharraf was enabled to leave the country, and he died a broken man in Dubai last year.

The current balance has decisively tilted against the judges, and while the constitution still makes its revocation by an army coup traitorous, it is unlikely that any judge will have the courage to invoke the relevant provision. This is because the amendment will have a chilling effect on the entire judiciary. The current situation has been brought about because the Supreme Court was split between pro-Imran Khan and anti-Imran Khan judges. In many cases, the former gave judgements that were making life difficult for the current government and the Army. One of these related to the interpretation of Article 63A of the constitution. The pro-Imran judges held that in matters covered by that Article, if a party member broke a whip issued by his party, then his vote would not be counted. Chief Justice Isa constituted a bench that overruled this decision. Isa was against Khan.

The primary fact of Pakistani national life is the struggle between Munir and Khan. The Pakistani government led by Shahbaz Sharif is necessarily subservient to Munir. Now the courts will have little choice but to not embarrass Munir and the Army, even if the latter remain in the background.

Finally, there is no chance of any great popular resentment, let alone demonstrations, to the constitutional amendment.

The writer is a former Indian diplomat who served as India’s Ambassador to Afghanistan and Myanmar, and as secretary, the Ministry of External Affairs. Views expressed in the above piece are personal and solely those of the author. They do not necessarily reflect Firstpost’s views.