Qamar Bashir
The government and parliament, working in concert, appear bent on laying landmines for democracy and its institutions—actions that are more likely to backfire on them than harm institutions like the judiciary, the army, or others.
The government and parliament, which have a vested interest in clipping an independent judiciary, have resorted to a three-pronged strategy aimed at curbing judicial independence. First, they seek to prevent Justice Mansoor Ali Shah, the architect of the restoration of the PTI as a political party in parliament and provincial assemblies, from becoming the next Chief Justice. Justice Mansoor is known for being resolute and independent, and his ascension could challenge the government’s interests, particularly in implementing the Supreme Court’s decision to restore PTI and allocate seats to the party. Furthermore, his leadership could accelerate the work of election tribunals, currently stalled by stays granted by Justice Qazi Faez Isa.
Second, the government seeks to almost double the number of Supreme Court judges, likely to increase the presence of judges they have cultivated for political purposes. Lastly, the most serious and unconstitutional attempt involves stripping the superior courts of their independence and bringing them under the control of the executive. These actions not only undermine the judiciary but also threaten the fundamental principles of democracy by eroding the separation of powers.
The government, in its haste to bring the judiciary under its control, seems to have overlooked a fundamental constitutional principle: in parliamentary democracies, the three pillars of the state—the executive, legislature, and judiciary—perform their mandated functions independently of each other. Each branch is equal in status and independence, and none reports to the other in terms of its organizational or executive decisions. All three pillars are accountable only to the President, who serves as the head of state. Even when these branches need to communicate, they do so through the office of the President. For instance, the President administers the oath of office to both the Prime Minister and the Chief Justice, convenes sessions of the National Assembly and Senate, and ultimately gives assent to bills, allowing them to become law.
While the government’s attempt to enlarge the strength of the Supreme Court may carry some logic, its attempt to give the Prime Minister the power to appoint the Chief Justice, restrict the tenure of the Chief Justice to three years, and hold judges of the superior courts accountable for their performance is absurd, outrageous, and contrary to the norms of parliamentary democracy. Such moves violate the principle of separation of powers between the three pillars of the state. Therefore, the best course of action for the government is to halt these shortsighted constitutional amendments, as it is likely to be struck down by the Supreme Court for being in conflict with the general scheme, structure, and intent of the Constitution.
In established democracies, the judiciary operates independently to check the powers of the executive and legislature. In the UK, for instance, judges are appointed through independent bodies like the Judicial Appointments Commission, ensuring merit-based appointments without political interference. Similarly, in India, the Collegium System enables senior judges to appoint their peers, safeguarding the judiciary’s independence. Granting the Prime Minister such appointment powers would seriously erode this balance and compromise the judiciary’s autonomy.
Limiting the Chief Justice’s tenure to three years is equally problematic. In democracies like Australia and Canada, the Chief Justices are appointed until a mandatory retirement age, allowing them to make long-term judicial reforms and ensure continuity in legal governance. A three-year term would allow frequent political interference in judicial appointments, undermining the stability and independence necessary for a well-functioning judiciary. Short-term tenures would make it easier for the executive to influence judicial decisions by frequently appointing new Chief Justices, diminishing the role of the judiciary as an impartial and independent body.
Furthermore, holding judges accountable to the executive or political entities contradicts the norms of judicial accountability, which should remain within the judicial framework itself. In countries like Germany and France, judges are accountable to higher judicial bodies or peer committees, maintaining their independence from the executive. Political oversight of the judiciary would open doors for manipulation, especially in politically sensitive cases, eroding public trust in the courts and turning the judiciary into a tool of the government, as seen in Hungary and Poland where similar reforms led to the weakening of democratic values.
Through these amendments, the government or establishment aims to reduce the judges of the superior judiciary to the level of civil servants, who are at the mercy of the government in terms of their postings to valuable and powerful positions and are vulnerable to punishment if they fail to comply with the legal or illegal demands of the government or establishment. As a result of such manipulative control over civil servants, the entire civil service has been weakened, becoming inefficient, self-serving, and focused on seeking power and influence rather than serving the public and the nation. This leads to a system driven by personal whims, desires, and vested interests, rather than the rule of law. God forbid, if this amendment is passed in its current form, it would spell the end of parliamentary democracy and usher in the worst form of dictatorship.
Ironically, a parliament accused of consisting of members who were selected rather than elected, and who allegedly came to the assemblies based on manipulated and falsified Form 47 results, lacks the moral standing to introduce constitutional amendments until the allegations of election rigging and issues surrounding Form 47 are resolved.
Similarly, the government is composed of ministers who are either unelected, or in the case of those elected, are alleged to have won their seats through manipulation of Form 47. The government is inefficient, with the country facing a severe law and order crisis, a surge in terrorism, rampant smuggling, disastrous financial management, dried-up foreign investment, skyrocketing inflation, and a brand value that ranks just above Afghanistan from the bottom. With these issues, how can the government be expected to bring meaningful reform to the judiciary? If the government had been functioning efficiently and delivering results, it might have some justification for initiating judicial reforms or holding the judiciary accountable for its performance.
In conclusion, these proposals would distort the balance of power in a parliamentary democracy, erode judicial independence, and weaken the separation of powers essential for democratic governance. Public trust in the judiciary and its role as an independent arbiter of the law would be severely compromised if such reforms were implemented, making it crucial to uphold the principles of judicial autonomy and democratic integrity.
Qamar Bashir
Former Press Secretary to the President
Former Press Minister to the Embassy of Pakistan to France
Former MD, SRBC, CEO, ATV
