Illusion of power … Maleeha Lodhi

THREE words said it all. “Judiciary’s wings clipped.” This was the banner headline in an English newspaper after adoption of the controversial 26th Constitutional Amendment.

While the PML-N-led government and allied parties celebrated their ‘victory’, many people in the country including legal experts saw this as a blow for an independent judiciary and the rule of law.

Television channels were issued official ‘instructions’ to play down criticism of the so-called constitutional package. But such media policing did nothing to obscure the grim reality of what had happened.

An anxious government along with its nervous political allies rushed through changes to the Constitution in the name of ‘parliamentary supremacy’, which fundamentally eroded the independence of the judiciary and made it subservient to the executive. The constitutional principle of the separation of powers was seriously undermined.

The most significant change is the government arrogating to itself the power to choose the chief justice from a panel of three of the Supreme Court’s senior most judges. A parliamentary committee reflecting the government’s majority was empowered to nominate the CJ. This met quickly to select Yahya Afridi, the third judge on the seniority list, as chief justice — superseding Justice Mansoor Ali Shah.

According to the amendment, constitutional benches will be established comprising judges chosen by the Judicial Commission, whose composition has been changed, with a third now constituted by government nominees. This is aimed at enabling the government to determine which judges hear cases of concern to it. The Judicial Commission has also been empowered to undertake ‘annual performance evaluation’ of high court judges.

The reaction from much of the legal fraternity was rejection of the amendment as an extra-constitutional move that changed the Constitution’s basic structure and “strangled justice”.

The Karachi Bar Association denounced the amendment calling it a “direct attack” on judicial independence that could “obstruct access to justice for ordinary citizens”. Others saw it as a blow to democracy. Members of the legal community called for protests against the passage of the amendment.

Meanwhile, the International Commission of Jurists declared “these changes bring an extraordinary level of political influence over the process of judicial appointments and the judiciary’s own administration”. And “they erode the judiciary’s capacity to independently and effectively function as a check against excesses by other branches of the state and protect human rights”. Similar concerns were voiced by the UN High Commissioner for Human Rights Volker Turk who said the constitutional amendments would “seriously undermine independence of the judiciary.”

What attracted widespread criticism was the haste with which the ruling party and its allies pushed for parliament to pass the amendments. Various drafts of the constitutional package were kept under wraps and the final version wasn’t even available to lawmakers before being tabled. Few read it. The public was kept in the dark with no effort made to take people into confidence. Barring a few speeches, no real debate took place in parliament.

The entire legislative process lacked transparency and was over in a few hours in both houses of parliament in the darkness of the night. Credible reports of official coercion to secure the required two-thirds vote further robbed the process of legitimacy. An editorial in the Express Tribune called this a “manufactured” majority. Such criticism reinforced the opposition’s allegation that the government used dubious methods to get this done including intimidating legislators.

What was behind this unseemly haste by the government? Obviously, the retirement of chief justice Qazi Faez Isa and the PML-N coalition’s intent to select his replacement. The government and its principal ally, the PPP, were fearful that the next chief justice could rule favourably on petitions or reviews of cases filed by the opposition PTI, possibly even order an audit of the February general election, which the party has long alleged was rigged.

Already the government was reeling from the Supreme Court’s judgment on reserved parliamentary seats which, together with the Election Commission, it has been trying to thwart by refusing to implement the decision. The spectre of the next chief justice, if chosen by seniority, and who was fiercely independent and not compromised, seemed to unnerve the government.

It was apparent that political motives and not earnestness about judicial reform lay behind the government’s move, which had the full backing of, if not encouragement from, the establishment, also smarting over judicial rulings that had proved embarrassing for it.

The key question is whether the government has secured its political future by this amendment. As a general rule, power cannot be secured by undermining institutions, which has deleterious consequences that kick in sooner or later. Weakening checks and balances that limit arbitrary decisions has adverse implications for governance.

If Pakistan’s history is any guide no government has ever secured itself by such machinations. Ultimately, it is government performance and the legitimacy of its actions that guarantees its stability. Of course, our political history also shows that regardless of how a government acts, it is the establishment’s support or lack of it that determines its longevity. But the enabling factors for the establishment to withdraw its support from a government (or proactively move against it) are when it loses popularity and/or is governing poorly. In these circumstances, no legal or constitutional re-engineering can come to the aid of a government.

The bottom line is that nothing makes any government invincible and impervious to challenges to its power. Governments can and do engage in autocratic practices the world over in the mistaken belief that manipulation of the law, repression and coercive tactics will help them consolidate and accumulate power. But resort to such measures and pursuit of unchecked power only shows how weak and vulnerable they really are, their lack of self-confidence as well as absence of faith in democratic processes and instruments.

The drama over the constitutional package has laid bare the lack of commitment of the ruling party and its political allies to democracy and democratic principles. Their undermining of judicial independence has left the country’s institutions poorer. It will also do little to secure their tenure. That depends on a host of other more consequential factors, especially government performance.

Courtesy DAWN