Why taming the judiciary is a Pyrrhic victory for lawmakers

IT was the darkest night of the country’s parliamentary history. The spectacle of two opposition lawmakers from Balochistan — one on a wheelchair and the other, a female member, wrapped in a dark shawl — being whisked to the Senate session tells the story of how the 26th Amendment to the Constitution was passed.
The two had been reported missing for some time. The security guards would not let any journalist speak to them. Their vote helped the ruling coalition clinch the required number in the Upper House.
After the Senate vote, the National Assembly met at midnight. Half a dozen opposition legislators who had also, allegedly, been missing for the past several days appeared on the treasury benches. The defectors completed the number required to pass the amendment in the Lower House too. That’s how the ‘brute majority’, which PPP chairman Bilawal Bhutto-Zardari had threatened to use, delivered.

What happened on the night of Oct 20 and 21 has demolished the very foundation of the Constitution that ensured the trichotomy of power. One by one, leaders of the ruling parties rose to hail their success in taming the judiciary. They declared it a triumph of democracy and the supremacy of parliament. Little do they realise that they are just pawns in the larger game of thrones. It was a Pyrrhic victory that they were celebrating.
It was amusing to watch young Bilawal pontificating on how the amendment that establishes a separate constitutional bench nominated by a judicial commission packed with government nominees fulfils the “Quaid’s vision”. He also cited the pledge made in the Charter of Democracy. It was extremely naïve of him to make such claims distorting the context of those statements.
Bilawal’s defence of the move to curb the independence of the judiciary, which forms the foundation of the Constitution, raises questions about his party’s commitment to democracy and the rule of law. Even military governments have not been able to do what the so-called elected civilian dispensation has done to destroy the independence of the apex court. A handpicked judiciary will only strengthen the hand of the extra-constitutional powers.
It may be true that judicial activism has often encroached upon the powers of parliament and the executive, distorting the balance among state institutions. It has also been responsible for destabilising elected governments. But all such actions were backed by the security establishments and rival political parties, which are now the movers of the controversial amendments.

How can one forget the PML-N and its leader Nawaz Sharif supporting the sacking of then prime minister Yousuf Raza Gilani by chief justice Iftikhar Chaudhry in 2012? Similarly, PPP leaders, including Bilawal, hailed the Supreme Court’s decision in 2017 to convict the then prime minister Nawaz Sharif. Those convictions would not have been possible without the backing of the security establishment and each of these two political parties, now a part of the coalition, willingly became an instrument in the establishment’s game against political rivals. All that happened after the party signed the Charter of Democracy in 2006.
There was no mention of their respective roles in supporting those controversial judicial actions as the two parties’ leaders blasted the judiciary in their victory speeches in parliament following the passage of the 26th Amendment. For 10 years, during which the two parties had been in power, no one heard anything about a constitutional court. Now they have come together to support what is perceived as the establishment’s new game plan.
It was not surprising that the plan was set in motion after six judges of the Islamabad High Court spoke out about the interference of the intelligence agencies in judicial matters and the harassment of judges. Later, the majority judgment of the Supreme Court on the redistribution of the reserved seats for women and minorities in the National Assembly as well as the provincial assemblies gave impetus to the move.
After failing to muster the required numbers in their previous attempt last month, the government started working on a modified draft in order to bring JUI-F’s Maulana Fazlur Rehman on board. Following weeks of hectic negotiations, the crafty maulana finally gave his party’s consent to a watered-down version. That made the task of the government much easier.
Although some of the clauses related to a separate constitutional court and the granting of sweeping powers to the security forces were dropped, there was not much change in the draft as far as the move to make the judiciary subservient to the executive was concerned. The role of the executive in the formation of the constitutional bench has made things much more complex. The amendment also takes away the Supreme Court’s suo motu powers, sets the chief justice’s term at three years, and empowers the prime minister to appoint the next chief justice from among the three most senior Supreme Court judges.

Besides appointing the judges, the judicial commission will also conduct a “performance evaluation of judges of the high courts”. Under this clause the judges will be treated like government servants. It is meant to bring the judges under pressure and make sure they toe the line.
With the perceived help of the security establishment and through the use of coercive tactics, the government has managed to get this controversial amendment passed. It was outrageous the way the opposition members were forced to switch sides. The lawmakers remained captive for a whole weekend.
There was no debate on such a critical and far-reaching constitutional amendment. Most of the legislators were not even shown the draft. They were not supposed to defy the orders of their party leaders. Indeed, our parliamentary history has not been an enviable one but what happened last weekend has no precedent.
But the game is not over yet. Most of the bar associations have rejected the constitutional amendments passed by a parliament with questionable legitimacy. It remains to be seen how the new chief justice and other judges react to the curtailment of the independence of the judiciary. It will not be that easy for the government and the establishment to bring the judiciary under control.
The writer is an author and journalist.
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Published in Dawn, October 23th, 2024