Judicial independence under attack in Pakistan

Pakistan’s Supreme Court (SC) has a history of putting a check on government action. In several cases, it has insisted on constitutional principles and ruled against governments at national and provincial levels. By setting precedents like that, it has encouraged lower courts to place state agencies under judicial review as well. 

Pakistan is struggling with a deep economic crisis and serious security issues. The country is run by a multi-party coalition which took office after a general election in February in which supporters of Imran Khan, a controversial former prime minister, won the most seats, though not a majority. Khan has been imprisoned for many months, and many say on trumped-up charges. Some of his party’s leaders are also in jail or in hiding. Political repression is increasing. Political activists, social-media influencers and even opposition lawmakers have mysteriously disappeared, but some have reappeared after a court intervention. 

After the February elections, serious accusations of rigging were made. The government thus has reason to fear the SC might nullify the result. 

In this scenario, it raises suspicions that the government wants to reform the judiciary. To many Pakistanis, that looks like a power grab. So far, the details of the constitutional package have not been published. Some information was leaked to the media, but policymaking is not transparent. It also looks fishy that major parties within the coalition have drafted different amendment proposals. Suspicions abound. 

It is clear, however, that the constitutional package is supposed to include points like the following ones:

• A new Constitutional Court (CC) would be set up to deal with all matters deemed to be of a political nature. The Supreme Court would lose its jurisdiction over these matters. It would be up to the CC to decide which matters are exclusively its own to decide. Quite obviously, that would include cases pertaining to national security and the military, which, in the past, has often lost cases before the SC. 
• The chief justice of the CC would be appointed by the president following advice by the prime minister, and the others by the president after advice by the chief justice. So far, top judges in Pakistan are chosen by a specialised judicial commission. SC judges serve until retirement age, but the chief justice of the CC would get only a single three-year term. The government could thus regularly decide who exactly will hold it accountable in the near future. 

The government argues that it wants to lessen the burden of the SC, stating that the apex court is hearing so many political cases that ordinary litigants face long delays. Opponents disagree. They point out that the constitutional package will undermine the judiciary’s independence, which is essential for protecting citizen’s fundamental rights. Some say that the CC will be nothing but a “kangaroo court”.  Lawyers’ organisations vehemently oppose the constitutional package. 

A plot to prevent Syed Mansoor Ali Shah?

One wide-spread rumour is that the government wants the current SC chief justice, Qazi Faez Isa, to head the new CC. He is close to retirement age but known to see the government in a favourable light. According to the constitution, more independent-minded Syed Mansoor Ali Shah would succeed him on 26 October. The constitutional package could thus protect the sitting government from judicial review by the SC. Plans to raise judges' retirement age from 65 to 68 look personally tailored to Isa.

The opposition smells a rat. It says that the constitutional amendments are being introduced in bad faith, only to ensure that the administration of Prime Minister Shehbaz Sharif stays in power. Fear of the post-Isa SC would explain why the government is in such a hurry to get the constitutional amendment bill passed. 

Constitutional amendments, however, require two-thirds majorities in both the National Assembly and the Senate. The government does not have enough seats in either house of parliament. Observers warn that it will try to bribe members of opposition parties.

Imran Mukhtar is an Islamabad-based journalist. 
imranmukhtar@live.com