Consolidation or separation of powers?

The boundaries of parliamentary sovereignty have seized recent political discourse and occupied the attention of the judiciary and legal fraternity.

While the government fought tooth and nail to pass the 26th Constitutional Amendment, the opposition appeared out of sorts due to conflicting positions within its ramshackle leadership. Although this may appear as an end to the ‘amendment saga’, it is just the beginning of institutional recalibration.

To the chagrin of self-professed lovers of freedom and all things democratic, the nation witnessed the passing of the 26th Amendment to the constitution. To their credit, the coalition made Machiavelli proud by effectively ‘bulldozing’ their proposed amendment to the constitution. Only time will tell whether this subjugation of the judiciary was necessary for political and economic stability.

In ‘The Spirit of Laws’, Montesquieu denotes the reconciliation of governance through accountability as the central theme which underpins the separation of powers. This doctrine was developed by Dicey to render the concept of rule of law, whereby each arm of the state is present to prevent tyranny of one institution over the other.

This concept requires state institutions to prevent each other from monopolising on powers afforded by the constitution as monopolies mutate independence into tyranny. Judicial independence has been denoted as the precursor to the establishment of rule of law. The protection of separation of powers places a great burden on the judiciary as ‘trustees of the law’.

The 26th Amendment may be perceived as a move to thrust the legislature upon the judiciary by amending the procedure for the appointment of the chief justice of Pakistan. A matter that rested on seniority-based hierarchy is now imbued with great uncertainty.

The amended Article 175A provides that the chief justice of Pakistan may be appointed amongst the three senior-most judges of the Supreme Court. This appointment rests with the president upon recommendation of the prime minister as per the nomination of a twelve-member parliamentary committee. Hence, the dubbing of the amendment as politicisation of the judiciary – and by extension an attack on its independence.

Members of the legal fraternity have vehemently opposed any compromise on the independence of the judiciary since the time of the lawyers’ movement and periods of military rule. This notion has been bolstered by calls for the protection of fundamental rights amidst the explicit protest registered by the honourable judges of the Islamabad High Court and the incarceration of opposition leaders and workers.

The inclusion of lawyers within the political ranks of PTI has caused these voices to grow even louder in an effort to secure the release of PTI founder Imran Khan along with an investigation into the alleged discrepancies of the February general elections. It appears that the latter issue made it imperative for the government to come up with this amendment.

The amendment may not necessarily translate into the courts becoming a hapless plaything for the legislature (as once remarked by Justice Munib Akhtar). However, the amendment may result in a painful recalibration where the honourable judges may suffer from withdrawal symptoms on account of disruption to their unfettered access to selective justice. There is no doubt that the judiciary has safeguarded fundamental rights. However, one can hardly turn a blind eye to glaring anomalies in the dispensation of justice throughout Pakistan’s political history.

The limits of judicial independence could not have gone past the disqualification of two sitting prime ministers and the execution of a death sentence against another prime minister, yet the ink from the pens of our learned judges flowed freely to orchestrate these events.

One chief justice led a movement to secure judicial independence yet somehow invoked suo-motu jurisdiction to address allegations against his own family and virtually destroyed any notion of foreign investor confidence. One oversaw the collection of generous donations for a dam fund, the construction of which neither we nor our grandchildren are expected to see.

Throughout the political history of Pakistan, authority (commonly read as power) has shifted in a pendulum-like manner between state institutions. However, in recent times the whole state moved in one direction to stamp out any form of dissent with the final stamp of approval made in the form of court orders. Interestingly, those calling for justice today were the very belligerents against democracy when their arrival in Islamabad was facilitated in 2018. After all, the downfall of a three-time prime minister did not come about through general elections or parliamentary accountability but a petition: Imran Ahmed Khan Niazi v Muhammad Nawaz Sharif.

Under normal circumstances, such an amendment may have caused discomfort. However, the current outrage is against how it was passed. In the absence of public debate, this consolidation of power will effectively widen the chasm of trust between the state and its people.

Many will question the legitimacy of the current members of the legislature to pass such an amendment. The consistent blunders of the Election Commission of Pakistan and the government have exposed the compromised nature of the system and diminished any sliver of support amongst the populace. If stability is the aim, Prime Minister Shehbaz Sharif should adopt a cautious approach as supersession often brings with it dire consequences.

Although Augustus may have triumphed upon the dissolution of the triumvirate, Pax Romana was proclaimed once he had secured the support of his people.

The writer is a lawyer.