Generals in Pakistan’s General Headquarters will now have more peaceful nights as the higher judiciary problem has been resolved to their desire in partnership with major political parties. The resolution of the matter has also brought the Right and the Centre together. The religious Right emerged as an important stakeholder for not just negotiating the amendment but also benefiting from it long-term. Justice Yahya Afridi is now the new Chief Justice of Pakistan Supreme Court, encircled by new laws that are meant to keep the higher judiciary on its toes and discourage years of overstepping its mandate.
The re-organising of legislative-judiciary relations was definitely required but what makes the matter so scandalous is the way it was carried out—from temporary abduction of parliamentarians and illegal force applied to get the desired vote in favour of the 26th amendment to the 1973 Constitution. Any sense of fair play that the government benches claim has been eroded. Justice Afridi may be an independent judge and Justice Mansoor Ali Shah’s parting letter to the outgoing Chief Justice Qazi Faiz Isa seems questionable, but the new chief justice will be observed very critically. Any future decision that appears soft to the gallery, especially vis-à-vis the current government or the establishment, will get criticised and labelled as fruits of this selection.
The 26th amendment to the constitution has now developed a new institutional mechanism for the selection of the chief justice and management of the higher judiciary. The key changes brought through the amendment include changes to clause 3 of Article 175 of the constitution regarding the selection of the chief justice. The senior-most judge no longer automatically becomes the chief justice. Now, a special parliamentary committee comprising eight members of the National Assembly and four from the Senate selects a name from the list of three senior judges that would then be forwarded by the prime minister to the president for approval.
Furthermore, the tenure of the chief justice has been limited to three years. Clause 3F of article 68, which bars lawmakers from discussing the conduct of the judges, has also been changed. It will not apply to members of this committee. Performance evaluation of the high court judges has been introduced, and so has the creation of constitutional benches— changes that emerged out of a compromise thankfully negotiated by Maulana Fazlur Rehman of the Jamiat Ulema-Islam Fazl group (JUI-F).
As journalist Arifa Noor commented after passing of the amendment: “Had it not been for the JUI-F, the parties in the parliament would have signed away our rights, without even expressing any remorse.”
Rahman played a major role in forcing the government and the establishment to abandon their original plan to form an independent constitutional court. Of course, the maulana also extracted a pound of flesh by conceding to cooperate in the form of changes to control of the madrassas that have been given back to local administration from the Ministry of Education through amendment in the Societies Act.
The political crisis is not over, but the current parliament has played a major role in redefining the role of the superior judiciary that they believe had gone out of control. Successive chief justices, starting from Iftikhar Chaudhry, turned into populist judges by constant intervention in state affairs and passing questionable and sometimes not-so-questionable decisions. From cancelling the Reko Diq gold and copper mine contract that not just cost Pakistan $5.9 billion in fines but also its credibility among foreign investors to intervention in everyday governance, many were getting exhausted by the higher judiciary.
But for Pakistan People’s Party’s Chairman Bilawal Bhutto-Zardari the painful memory of excesses and injustices of higher judiciary dates back to the unfair judgment that led to his grandfather Zulfiqar Ali Bhutto’s hanging in 1979. It goes without saying that the role of the higher judiciary in Pakistan’s constitutional history doesn’t give it a good name.
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What role will the new justice play?
The recent changes to the constitution curtailing the power of judges are not necessarily inspired by the political class but are a result of a partnership with the military establishment. It ensured the numbers in the Parliament through the use of illegal force to make sure the amendment was possible.
Some argue that the new law is not necessarily a result of the political class’ reaction to judicial excesses but because some judges did not ‘play ball’ with the establishment. The current army leadership was not just wary of judicial overreach that dates back to the famous lawyer’s movement in 2007, but the fear that the new leadership of the Supreme Court, especially if Mansoor Ali Shah became the chief justice, would not be compliant or as neutral as they would like it to be.
Though there was initial anxiety regarding Justice Isa, especially after his famous judgment regarding the Inter-Services Intelligence’s (ISI) involvement in promoting the Barelvi extremist group Tehreek-e-Labaik Pakistan (TLP), the mood changed after Isa started to go soft on the army. Justice Isa played down the anxiety expressed by some judges of the Islamabad High Court who wrote a letter of complaint to the chief justice. The recent choice for chief justice, Yahya Afridi is a man, who, apparently recused himself from the bench of a suo moto case regarding intelligence interference.
He is also known for not striking down the law that allowed the military to court-martial civilians, though he initially opposed civilian trial by military courts. But more importantly, Afridi supported the Election Commission of Pakistan (ECP) having the power to decide on reserve seats, a matter that is highly contested by the PTI.
The military establishment in partnership with the government encouraged the conflict within the higher judiciary that revolved around pro-PTI versus anti-PTI politics. Even the personal interests of judges were divided between two camps: the pro-Isa camp that would not have objected to his extension that was initially being planned versus those that supported Shah taking over as the next CJP. The division remains as was obvious from the fact that five of the senior Supreme Court judges boycotted Isa’s farewell party. Interestingly, Afridi, Shah and Athar Minallah were partners in the same chamber when they were lawyers. It’s why many wondered if Afridi would defy Shah. But it seems that ultimately personal interests dominate personal or institutional loyalty.
The politics behind the constitutional change makes one wonder if the intention is really to make the judiciary more efficient and responsive. After all, the suo moto case that irked both the ruling dispensation and the establishment developed because of the lack of responsiveness of successive governments. In a state suffering from poor governance, judges, in fact, turned into a Godot that the masses waited for because there was no other door they could knock at to get some intervention.
A powerful establishment that abducts people and interferes with the everyday running of the state or a government that fails to deliver, forces others to play a more significant role. The governance and chaotic politics will force people to keep looking for Godot, which won’t make Justice Afridi’s job easy. The fact that soon after the announcement of his appointment he nominated Justices Mansoor Ali Shah and Muneeb Akhtar, both disliked by the establishment, to the Practice and Procedures Committee of the Supreme Court indicates that he is conscious of the baggage of unpopularity he currently carries, or that he wants to use the opportunity to gently negotiate between the angry judges and the government. One will have to wait for the next crisis to see how the relationship between the legislative, judiciary and military unfolds.
Ayesha Siddiqa is Senior Fellow at the Department of War Studies at King’s College, London. She is the author of Military Inc. She tweets @iamthedrifter. Views are personal.
(Edited by Theres Sudeep)