As passive observers of the developments related to the constitutional package, both you and I have been very critical of nearly all the arguments in its favour, highly suspecting it to be a part of a bigger facade. This scepticism ties into the widely debated claim that these amendments have been “politicised” without cause and should be viewed independently. But can we really be blamed?
Given the current political context of our country, where people are questioning the legitimacy of recent elections and the government they installed, and where, even more concerning, accusations are being levelled against the head of judiciary (who ideally should be seen as an impartial figure) for having political affiliations. The purpose of this claim (at least as of now) is not to scrutinise a certain political party or question someone’s individual credibility, but it is to underscore the severity of the situation and the extent of mistrust that exists within the general public. Keeping that in mind, I do not understand why it was a strategically good decision to propose such controversial amendments. But then again maybe we are being overly critical of the government’s intentions and perhaps it really is a coincidence that a majority of amendments do hint towards stripping the judiciary from its independence and making it subservient to the government.
Nonetheless, because the court in question is the highest court of the country we will have to be critical – can’t let them get away with fancy rhetoric. Yahya Farid Khwaja says that this newly amended process of selecting the chief justice will ensure “meritocracy over seniority”. This time it will be difficult to let the word “meritocracy” slide in because firstly, it is unclear and unspecified as to what this meritocratic process will look like, and secondly, because “selection” and cherry picking one over the other, creates a lot of potential for abuse by default.
Especially in this case when the senior judges of the apex court are being selected by an eight-member National Assembly committee. This is counterintuitive to the claims made by the proposers of these amendments that their aim is to “depoliticise courts” and limit external influences. I am unsure as to how this is happening if the apex court is becoming a mere puppet of the ruling political party or coalition. What it really does look like is that through this committee there will be appointments of judges, who will interpret the constitution in line with the will and agenda of the political party in power. Even after the best attempts of interpreting this in a positive light, it remains unclear how this is “depoliticisation” of courts?
It is also crucial to note that this concern is independent of the usual political biases that may creep in other debates. Rather, it is to emphasise on the kind of potential that is created for abuse and the fact that it will have long term repercussions for the country. Precisely, the parliament, through this (un)constitutional amendment, is removing the Supreme Court’s power to interpret the Constitution and transferring it to another body that is essentially under the control of the government or legislature because now the President will appoint the Chief Justice of the FCC based solely on the Prime Minister’s advice. Read that again. So apart from the fact that this will very obviously increase the involvement of the executive in judicial appointments and that it is an encroachment of the principle of separation of powers, the situation is especially alarming for minorities.
Because essentially one of the purposes of the judiciary is to protect fundamental rights and safeguard minorities from legislation that is targeted towards appeasing the masses and often ends up overlooking their interests. At the point in time when the judiciary is the government’s puppet, the likelihood of such laws being struck down decreases significantly. This becomes worse when the FCC also has exclusive jurisdiction over writ cases, which are formal requests pleading the court to protect someone’s fundamental rights or safeguard them against aggression by government or public authorities.
Ultimately, the impact of such controversial amendments being proposed and taking rounds on social media, hinting towards harming the intricate balance of judicial independence, disintegrates public trust in the government and judiciary. The trust in its ability to safeguard their rights; trust in its ability to protect them from abuse. Consequently, Mr Tarrar’s claim that “the ultimate purpose of the package is to bring relief to ordinary litigants by ensuring speedy justice” is not achieved, simply on the grounds that a larger number of people lose faith in the judicial system and stop using it as means to achieve justice. It is perceived as another extension of the government, with power concentrated in the hands of a few people. Especially the minorities in Pakistan, who already suffer under the status quo, are further pushed into a vulnerable state, with no institution to rely on. In light of this political climate within Pakistan, it prompts the question: Can we really be blamed for being sceptical of these amendments?