On October 21, the parliament passed the 26th amendment to the constitution, and secured presidential assent. The amendment introduced 27 clauses to reform the judicial system encompassing both High Courts and the Supreme Court.
The main feat was to achieve the lofty target of seeking the consent of two-thirds of legislators sitting in both upper and lower houses. Nevertheless, to achieve the end, the state machinery resorted to enforced disappearances of certain legislators, who would vote for the cause by bargaining. The modus operandi was the death of the constitutional principle of fair play. Similarly, the effort to amass the total number overwhelmed the necessity of opening a debate on the amendment in the parliament. The quietness ensured was the death of the democratic principle of venting out one’s views on the floor of the parliament. The amendment could not initiate a debate in the parliament to let the people know the pros and cons of each of its clauses.
Although Maulana Fazal-ul Rehman watered down the original draft of the amendment, he could not save the judiciary from being denuded of its several legitimate powers, including judicial activism. The projected idea to make an amendment was to strike a balance between the role of the judiciary and that of the parliament. However, the end product borders on regulating the judiciary from the parliament. Regulation is the spot where the term parliamentary oversight stands abused. An attempt to regulate the judiciary from the top is the fundamental flaw suffusing the amendment. With that, two constitutionally obligatory features are violated: first the independence of the judiciary; and second, the division of power.
The independence of judiciary means that the judiciary shall be protected from external influences including the sway of the executive. The base line is that any step which has a potential for influencing decisions of a judge is tantamount to violating the principle of the independence of judiciary.
In a country where even legislators themselves are vulnerable to subjugation in their free will, whether or not to vote for a bill, as depicted recently, they cannot be considered free afterward to appoint a judge or even a chief judge out of their free will. To elaborate, if legislators can be picked up or blackmailed to vote for or against a bill, they can be forced again to select one judge and refute the names of other judges. The vulnerability of legislators (forming a parliamentary committee) to persuasive or coercive manipulation weakens their case for the validity of parliamentary oversight.
The division of power means that the executive and the judiciary shall have their own powers to work in their respective domains. The idea that, after appointment, a judge would be free to work is plausible, but in a country such as Pakistan where players working behind the curtain are potent and where legislators are susceptible to bargains (bitter or sweet), a streak of compromise is bound to be inherited by the judge selected. That is, a judge with an independent mind can not be appointed.
For instance, the amendment says that the appointment of the chief justice will not be automatic on the basis of seniority but under the scrutiny of the parliament. From amongst top three seniors, anyone can be appointed as the chief judge. However, the amendment is silent on the criteria be used to make such an appointment, thereby leaving the matter to the discretion of the parliamentary committee, which can act arbitrarily – without extending justifications or reasons for selecting one judge and rejecting the other two. As per the law of access to information, the public has a right to have access to justifications and reasons for the selection of one judge and rejecting others.
Simpletons compare the appointment of the chief judge with that of the chief of army staff. The case of the selection of one general (from amongst five senior generals) for the post of army chief is different because, as per the constitution, the army is one branch of the executive. Being a subservient institution, the army does not enjoy the high status given to the judiciary in the constitution. Further, an army chief does not have to interpret the constitution to provide legal relief to people. Instead, an army chief is meant to obey orders.
In the (higher) judiciary, a judge is required who could deliver on the law without fear or favour and not a judge who would prefer to please legislators who would later on appoint him the chief judge. The kind of parliamentary oversight introduced in the constitutional amendment may be workable in Western advanced countries, where legislators are not coerced to vote for or against a bill and where the free will reign supreme. However, this is not possible currently in Pakistan, where intelligence agencies arrange protests to affect a public policy and even the life of a sitting government and where intelligence agencies supervise judges clandestinely, leaving no stone unturned for making the judges compromised.
In short, the Constitution was amended through an unconstitutional way: a vice cannot engender a virtue. Moreover, instead of fortifying the boundaries of the parliament, legislators trampled over the independence of the judiciary. Furthermore, instilling in judges a need to please legislators for promotion or appointment in the future is bound to surface a club of compromised and conceded judges who would be vying with each other for serving legislators better instead of delivering legal relief to the needy better. Such a scenario would be the death of the judiciary.
Dr Qaisar Rashid
The writer is a freelance columnist. He can be reached at qaisarrashid@yahoo.com