As the year approaches its end, Pakistan’s judicial system stands divided, subdued and eroded by uncertainty and confusion. Thousands of litigants whose cases await decisions are shuttling between courts, as there are now two highest courts in the land.
One has appellate jurisdiction in all matters except the constitution, the Supreme Court (SC), which is no longer supreme, and the other, the brand new Federal Constitutional Court (FCC), which has been given jurisdiction over all constitutional matters – appellate and original.
The SC stood at the apex of Pakistan’s judicial pyramid for over 70 years, and even during martial law regimes when constitutions were abrogated or put in abeyance, its power and jurisdiction were never diluted. Its decisions were binding and served as precedents for all courts in Pakistan.
The FCC begins its judicial journey with no precedents and is not bound by any precedents, yet now stands at the apex. The people and their causes face confusion, uncertainty and delay. The FCC will impose an additional financial burden on the national exchequer, as the state continues to borrow to meet its various ends.
The FCC appears to be the final act in a series of legislative and constitutional amendments enacted by parliament over the last three years, whereby the jurisdiction of the SC was interfered with and undermined in many ways. It began with the Practice and Procedure Act, 2023 (which contained several amendments to suit the situation), which eroded the powers of the chief justice of Pakistan, who was no longer the master of the roster.
It was followed by the 26th Amendment, which divided the SCP and established constitutional benches within it. The power to appoint judges to the constitutional benches was predominantly vested in the executive branch. The performance of the constitutional benches during their one-year existence is known to all. There was no relief for the common man.
The purported purpose of establishing the FCC at this time, as articulated by the PML-N and PPP, was to implement the Charter of Democracy (COD), signed in 2006. There is no explanation for why this noble objective was not fulfilled in 2010, when the 18th Amendment was unanimously passed. It was perhaps due to fear that the popularly restored CJ Chaudhry might strike it down.
The other, less well-known reason – as subsequent decisions of the Chaudhry Court showed – was that the FCC would not have suited one of the parties to the COD. The newly created Judicial Commission of Pakistan for judicial appointments under the 18th Amendment was immediately challenged and, after several days of hearings, was remanded to parliament. With the passing of the 19th Amendment, the balance of power swayed back to the judiciary.
Why the two leaders agreed to the establishment of the FCC under Clause 4 of the COD is not clearly articulated, but the COD’s preamble and certain other clauses shed light on the thinking of the two leaders behind the idea, who were living in forced exile. It was believed that the existing Supreme Court (2006) comprised judges who had taken oaths under the PCO, had justified martial law, abeyance of the constitution and the dismissal of sitting elected governments; therefore, the existing court was compromised. It was not sufficiently independent to uphold and protect the constitution against any future extra-constitutional interference. Thus, an FCC comprising independent judges with equal representation from the provinces would stand in its way, it was thought. It was not clear what procedures it would follow, nor was it clear what was meant by ‘constitutional matters’.
An uncommon idea of an FCC in common law countries, where usually the Supreme Court is the final constitutional court, the signatories to the COD and their constitutional advisers were perhaps influenced by the newly established Constitutional Court in South Africa (1996), without realising that circumstances and issues in South Africa were quite different from Pakistan. The grafting of a foreign idea without considering local conditions has always proved fatal.
The FCC now stands established in borrowed premises. Its judges have been selected by the executive without adhering to the appointment procedure laid down in the COD. It has adopted the Rules of the Supreme Court and has started sitting on benches like an ordinary appellate court, unlike a constitutional court which sits as a whole and derives its strength from its unity and number. The chief justice of the FCC is now the master of the roster.
The constitution, as modelled on the Government of India Act, 1935, created several rights, duties and acts and subjected the other two branches – the executive and parliament – to certain limitations. Thus, by the very nature of the constitution, the judicial branch was entrusted with the enforcement of the constitution and the limitations therein to safeguard the people from oppression, for which it had to be independent of the other two branches.
The power of appointment of judges is directly linked with the independence of the judiciary. Even where the executive has the power to appoint judges to the courts, binding constitutional conventions have evolved to secure the approval of the chief justices regarding the competence and integrity of persons to be appointed as judges.
Under the US constitution, the president nominates a person as a judge of the Supreme Court, but his/her nomination is subject to the consent and confirmation of the Judiciary Committee of the Senate, creating a check on executive power. In all other common-law jurisdictions, the power of appointment vests in the executive, but there are appropriate checks on that power.
Pakistan’s judicial history is not very inspiring. Like colonial judges, it has largely remained subservient to the executive, as it had neither the purse nor the sword, nor the courage or the requisite independence. Its judgments and actions, with few exceptions, were often driven by personal motives, temptation for privileges and protection in an atmosphere where uncertainty prevailed and the constitution had little sanctity. Justice Munir justified the dismissal of the Constituent Assembly and the abrogation of the Constitution on the basis of obscure theories.
There is no greater wrong to a state than the abrogation and mutilation of its constitution. Justice Hamoodur Rahman let off martial law administrators, delayed judgment and condoned unconstitutional acts. Justice Anwarul Haq and his court justified constitutional deviation on the ground of necessity. The dismissal of governments pursuant to Article 58(2)(b), with one exception, was justified and upheld by the SC. Justice Irshad Hassan Khan bargained his chief justiceship to justify the 1999 PCO and the subsequent removal of judges in 2000.
A sitting prime minister was sent home on a purported contempt charge. The Panama Leaks case was a continuation of that mindset, in which the judiciary lent its support to the removal of an elected government.
Contemporary events and the state of the SC judiciary since September 2023, including the establishment of the FCC, may be judged by future historians as a continuation of the same judicial pattern since 1954.
Granted that the judicial branch alone cannot defend the constitution and protect democracy. It can, however, secure its independence by not falling prey to personal temptations and ambitions. The acceptance of judicial office for personal gain renders judges vulnerable to external pressures and permanently deprives them of the capacity to stand by the truth.
The writer is an advocate of the Supreme Court and former additional attorney general for Pakistan. He can be reached at: [email protected]
