Experts say judicial independence at risk

KARACHI: Legal experts say that a Constitutional Court is unnecessary, allowing the executive control over judicial appointments threatens separation of powers, and reducing judicial representation in performance reviews and enabling judge transfers could stifle dissent. While proposals like refining Article 63A could gain support, the overall constitutional package is seen as rushed, partisan, and inadequate.

With all the uproar around the now-delayed package, The News asked legal experts how they see the draft of the package that has been doing the rounds, starting with what particular parts they find problematic.

Supreme Court Advocate Basil Nabi Malik lays out quite a few things he sees as controversial. To him, “creating a new Federal Constitutional Court is unnecessary, with the objectives achievable by merely creating permanent constitutional benches within the existing Supreme Court. This could have been done by the Supreme Court itself.”

High court advocate Hassan Abdullah Niazi agrees, adding that “Constitutions are about balance. No amendment should push this balance too far in favour of one institution of state. Yet the government is attempting to tear down the principles of judicial independence to create a parallel court system that it hopes will prove far more accommodating towards its unconstitutional actions.”

The problem with the proposed Constitutional Court, he says, is that its “initial membership is almost entirely to be determined by the executive branch. These choice judges are then to have all pending constitutional cases transferred to them from the Supreme Court. A government creating a new court, staffed with its favoured judges to hear cases regarding its own questionable conduct, would be a travesty for judicial independence and the separation of powers.”

Another problem is the appointment issue, explains lawyer Salaar Khan: “Having chief justices that are beholden to a committee of the National Assembly for their appointment is no real solution.” For similar reasons, he says “we ought to consider with caution the idea of a Judicial Commission -- with reduced judicial representation -- that will perform annual performance reviews of judges of the high courts, or have the ability to transfer them against their will.”

Malik calls the changes in the mechanisms to appoint judges “laced with partisanship, seeking to give the government and its allied partners greater say in the internal affairs of the judicial setup.” He also points out that “providing for a transfer of judges from one high court to another is another tool which can be used to silence dissent or ‘unruly’ judges.”

On the issue of a Constitutional Court, PILDAT President Ahmed Bilal Mehboob, offers a different take, saying that the idea of a Constitutional Court “is not bad. If one separates it from the current personalities and their possible appointment, I think there is a greater likelihood of developing a consensus.” He does, however, take issue with the annual review of the performance of high court judges by a commission that has four legislators and practising lawyers too: “How can such a review be protected from possible conflict of interest?

The proposed amendments are trying to curtail the Supreme Court’s powers of judicial review, fears Malik who points to how it is proposed that the “high courts not retain the power of judicial review when it comes to national security agencies.”

The package doesn’t just keep to judicial reforms, something lawyer Jibran Nasir reminds in a post on X (Twitter), saying that the amendments “also include provisions viz term of service of the ECP chief and chiefs of armed forces.” In his commentary on the proposed package, Nasir says that currently Article 199 prevents a high court from making any order in relation to terms and conditions of service of a person and matters arising out of such service of a person who is subject to laws relating to the armed forces. This exception has now been expanded, says Nasir and “under the proposed amendment, a high court cannot pass an order in respect of terms and conditions of service of any person who is performing functions under any law relating to ‘national security’. This can include any member of law-enforcement agencies and even bureaucrats. This also has the potential to provide impunity to actions like enforced disappearances and placing names on ECL/Watch Lists and illegal raids.”

Other than that, explains Nasir, the proposed amendments also include a provision that says that no amendments, alterations or repeal “can be made of any laws (acts of parliament) relating to terms of service, appointment, extension and re appointment of armed forces chiefs without a constitutional amendment.”

We ask if there would be any version of this constitutional package that would be acceptable. Explaining that “constitutional amendments require broad consensus established through a transparent process”, Niazi says “there are certain elements in the draft that the government can definitely achieve some consensus on. For example, strengthening the role of the Parliamentary Committee in the judicial appointment process, structuring the discretion of the chief justice of Pakistan, and correcting the Supreme Court’s erroneous interpretation of Article 63A.”

One way would have been to “build on existing structures, as opposed to creating something out of thin air”, says Malik. He says the proposal to increase the age of judges is reasonable, “but should be applicable to all judges who are appointed to the Supreme Court after the amendment comes into effect.” Apart from that, rather than creating a new constitutional court, “a proposal seeking for permanent constitution benches within the existing Supreme Court would have been better. And even in this parliament’s role should have been merely to support any initiative taken by the Supreme Court in this regard, if any.”

Judicial reforms were a rallying cry a few years back by bar associations. We asked our legal experts if any of these amendments reflect those points. Mehboob says that some of the proposed amendments “do reflect Bar Councils and Associations’ stated positions such as further refining the language of Article 63A so no ambiguity is left and the Supreme Court doesn’t have to give such controversial interpretation as it gave during J Bandial’s time.”

However, Malik feels that the bars “will not take a liking to these proposals. Any one amendment cannot be looked at in isolation. They must all be seen together, and in doing so, the bluntness with which the government has attempted to subdue the judiciary is apparent. Any lack of unity in tackling this, whether by the bar associations or the Supreme Court itself, shall be fatal for a judiciary already grappling with executive influence and interference.”

Regarding judicial reforms, Niazi feels that “establishing new courts or expanding the number of judges are shallow ideas being used to address deep problems. They have not worked in the past.” He uses as an example constitutional cases which he says make up only a small fraction of the disputes pending before Pakistan’s various courts “and yet the government’s entire focus is on addressing how they will be handled because they directly impact their own interests and their time in power.”

For Salaar Khan, “There can be no honest discussion about these proposed amendments without a discussion on the procedure, and the context that has led to such a procedure.” And even if one is to consider these amendments on their own, they will create more problems than they will solve, he says. According to him, “there’s something particularly sinister about sandwiching all these constitutional amendments between a new ‘right to a clean and healthy environment’, and awards recognising science and technology. It’s also quite telling that aside from these and ‘judicial reform’, the only other major amendments relate to the role and accountability of the armed forces.”

At the end of the day, the issue seems to have been of timing and approach by the government. As explained by Mehboob, the proposed package contains too many amendments “about a subject that is quite controversial, especially at this time when a change in guard at the SC is not very far.”

Ideally, he says, something like this would need a lot of time and patience to develop a consensus. For example, “It took almost 10 months to develop consensus on the 18th Amendment in the Parliamentary Committee on Constitutional Reforms. This package requires similar effort and the government has not been able to give that sort of time. I think the government has seriously hurt itself by making this aborted attempt.”