Courting unity

There has been much talk of charters of late. A new charter of democracy, a charter of economy and now even a charter of parliament. In the backdrop of all this chatter about charters – of which the greatest is the constitution itself – looms a proposed constitutional amendment. This much awaited draft was, and to some extent remains, cloaked in secrecy considering nothing has officially come to light.

On Sunday, however, parliament was summoned and members occupying and supporting the treasury were asked to fly in from all corners of the country and beyond for the grand unveiling. The entire nation was glued to their TV screens and with bated breath we waited.

Parliamentarians, hostage to their whips, too stood in anticipation – some eagerly waiting to vote and get it over with, others to oppose and stall no matter what. And then came the perfectly timed moment of comic relief, almost as though it was scripted: close to midnight, the law minister triumphantly announced he had finally received the draft. One hopes he meant from the printer because who else could have drafted these amendments if not the law minister and his department?

Since the coming to light of this draft, all those who have read what is now being referred to as a ‘kacha draft’, perhaps out of embarrassment, are in shock. Some are shocked by the content while others that any political party, no matter where they place on the democratic spectrum, could support it.

The proposed amendments, with all the sugarcoating possible, are nothing more than a poisoned chalice. Hence the bewilderment as to how so many were so dutiful and willing to sign off on it. The only explanation one can offer is that they were misled. But now that everyone has read the unofficial ‘kacha’ draft, we can all agree we have a unique opportunity to find common ground. Such opportunities don’t come easy or often in our deeply polarized politics – carp e diem!

All political parties claim they are struggling for the betterment of the people of Pakistan. These amendments too are ostensibly so people can get speedy justice. The PPP claims they supported the PML-N to end the political deadlock so Pakistan could progress. The PML-N claims they sacrificed their politics and with a heavy heart formed government so they could serve the people in difficult times and the MQM – well, they only live to serve.

My question to all those supporting these amendments; how are you serving the people of Pakistan via an attack on the apex court? No matter how we dress it up, it is nothing more than a naked attempt to bring to heel a court that will not be controlled and supplant it with one that will be subordinate to the executive and handpicked by the executive. So, before we so bravely sign off on the death warrant for the separation of powers, let us also consider what this means for judicial independence, whether there is need for a special constitutional court and how well these serve the people of Pakistan.

Considering that the people of Pakistan come last in the grand scheme of things or where national interest is concerned, let us deal with the other two questions first. Pakistan has a written (not always read) constitution and follows a common law system where legal precedents are binding; high court decisions are binding on all lower courts and Supreme Court decisions are binding on all courts.

Countries with common law jurisdiction don’t require specialized constitutional courts. The high courts and the Supreme Court have the power of judicial review and the final authority to interpret the constitution rests with the Supreme Court.

In 2005, the United Kingdom introduced judicial reforms to create an apex court as the final court of appeal and constitutional court because earlier that power rested with the House of Lords. This was not considered appropriate because it impinged on the concept of separation of powers and impartiality.

Pakistan is regressing, trying to bring in more executive control over the judiciary rather than trying to strengthen judicial independence. The matter of a constitutional court or bench has already been settled by the Practice and Procedure Act 2023, which stipulates that a five-member bench will hear all constitutional matters. To now create a special court that will not sit parallel to the Supreme Court but one the Supreme Court itself will be subordinate to is nothing short of a clipping of the Supreme Court. Legal experts, retired judges, and civil society all agree that these amendments will render the Supreme Court redundant and not supreme at all.

Additionally, the new ‘Federal Constitutional Court’ may be headed by a serving or retired judge or a lawyer handpicked by the executive, which does not bode well for judicial independence at all. One is then forced to ask: would the country not be served best by laws that create greater separation between institutions and strengthen the independence of the courts rather than by such seemingly politically motivated legislation?

The proposed amendments will have far-reaching consequences as they stand to reshape the contours of our constitutional order. They should be made public as a substantial part of the constitution is being amended and they need to be thoroughly debated. The 18th Amendment was a result of almost 10 months of debate and deliberation.

The people of Pakistan would be served best if all political forces unite in finding common ground to strengthen democracy and the institutions that support that process, not weaken it. After all, the crown changes heads often here. Spring isn’t eternal nor is a stint in jail.

The writer is a student of politics and a PTI politician awaiting

justice from a stalled election

tribunal.