In 1942, Lord Atkin cautioned against judges that “show themselves more executive-minded than the executive”. The present moment is a defining one for our justice system. Judges can either guard against executive overreach, or be more executive minded than the executive itself – Image The Friday Times

 

Post-26th Judiciary

By Rida Hosain
Pakistan

The judiciary in Pakistan has largely enabled undemocratic interventions. Even in cases such as ‘Asma Jillani’ (1972) it was only after Gen Yahya Khan had already stepped down that the court declared his martial law illegal. More recently, in Dec 2019, a special court declared that Gen Musharraf’s Nov 2007 actions amounted to treason, and sentenced him to death. In Jan 2024, the Supreme Court would hold that the special court’s conviction “subsists”. Except the treason conviction was held to ‘subsist’ when Musharraf had already died.

A true mark of justice is that it occurs in real time. Presently, attempts to assert judicial independence have been subverted by the 26th Amendment. Since its creation, the Constitutional Bench (CB) has decided three main cases, each of them in favour of the government. The post-26th Amendment judiciary has enabled the erosion of civil liberties, and defeated the people’s will.

The CB first allowed the military trials of civilians, and there can be no starker demonstration of judicial surrender. A month later, the Bench did not accept the petition filed by five courageous judges of the IHC challenging the transfer of judges from other provinces to their court. While validating the transfers, the matter was also partially referred back to the presidency. Ironically, the very executive being accused of interference was being given space for even more intrusion.

The judges that raised their voice against executive interference are being marginalised. It is alleged that the executive used the transfer provision to penalise independent judges. Inexplicably, Supreme Court Chief Justice Yahya Afridi gave his consent for the transfers.

In the third crucial case, the government demanded a greater share of reserved seats. The CB sided with the government again. The result was that a post-election exercise had altered the election results. The electorate did not give the ruling political alliance a two-thirds majority; the ECP and ultimately the court did. This case was about the rights of voters and ensuring the legislature reflects the people’s will. By denying the PTI its rightful share of reserved seats, an unrepresentative legislature has been imposed.

The judges gave their seal of approval to the ECP’s actions but focused on the PTI’s strategy, asking why PTI-backed independents joined the SIC. They did not question the circumstances that led to their joining the SIC. The judges questioned whether the PTI’s lawyers could have made better decisions. A question that arises: do judges sit in court to judge whether better strategic decisions could have been made or to protect the rights of voters?

The original decision by Justice Syed Mansoor Ali Shah held that the ECP had failed to fulfil its constitutional role. In a damning indictment, the court found that “the Commission [ECP] in its role as a guarantor institution and impartial steward is tasked with ensuring the transparency and fairness of elections to maintain public trust in the electoral system. … Unfortunately, the circumstances of the present case indicate that the Commission has failed to fulfil this role in the General Elections of 2024”.

The original bench was not swayed by hyper-technical objections, and held that the case pertained to the rights of “millions of voters” who were prejudiced by the unlawful actions of the ECP. After standing with the rights of voters, Justice Shah was unjustly bypassed as Chief Justice by an insecure regime.

While the CB decided cases that would shape the future course of the nation, its very creation was disputed. The constitutionality of the Bench remains disputed. The very objection against the 26th Amendment is that it amounts to executive encroachment in the judicial space.

In the new Judicial Commission, the majority are non-judicial members. Its composition enables the government to exert political influence in the judiciary. Since last year, the government’s view has been consistently prevailing in the Commission, which has the authority to cherry-pick judges that hear constitutional cases. Judges can be sidelined by exclusion, and judges can be rewarded by inclusion.

There are no criteria for nominating judges to the CB. Since the reasoning is not made public, Justice Aminuddin Khan will remain the most senior judge of the CB till Nov 30. There is no justification for why senior judges continue to be excluded from deciding constitutional cases. The amendment has allowed a government-sanctioned bench with government-approved judges to hear constitutional cases to which the federation is a party.

In 1942, Lord Atkin cautioned against judges that “show themselves more executive-minded than the executive”. The present moment is a defining one for our justice system. Judges can either guard against executive overreach, or be more executive minded than the executive itself.

(The writer is a barrister. Dawn)