Judging yourself

With a brute majority in parliament, lawmakers – most of them fending off challenges in election tribunals for their own seats – managed to push through a constitutional amendment. Among its more striking features, the amendment remade the Judicial Commission responsible for vetting and appointing judges, now stacking it heavily in favour of the executive.

But the tinkering didn’t stop there: the newly revamped commission gained the power to nominate judges for ‘constitutional benches’, which alone can hear any matter of ‘public importance’ that affects fundamental rights, or that calls for interpreting a constitutional provision. One might ask why such special benches are necessary in the first place, but let’s shelve that question for now. The big picture is that this new structure has already drawn legal challenges from lawyers, social activists, and political parties ever since (and even before) its inception.

A bench nominated by this executive-friendly commission is set to hear the constitutionality of the very amendment that brought it into being. If you think that raises eyebrows, you’re not alone. So here we are: a body that owes its existence to the amendment, about to rule on whether that amendment is valid.

‘No one should be a judge in his own cause’ – this principle appears in the earliest chapters of any book on law, yet those that should be bothered seem unmoved. Let’s indulge for a moment: suppose these benches are indeed eager to lighten the backlog in courts. By definition, they shouldn’t be biased or conflicted. That suggests they might uphold the amendments – or strike them down – on purely legal grounds.

But what if they do strike them down? Especially Article 191A, under which this bench is created? We’d have a ‘circular consequence’, where the entity formed under a law then declares the same law unconstitutional- pulling the legal rug right out from beneath its own feet. Imagine a structure demolishing itself and still pretending the vantage point was sturdy.

If that scenario sounds chaotic, it is. The judgment ‘striking it down’ would be built on a foundation that has just disintegrated. Turtles all the way down? More like quicksand under the bench.

The only sensible exit strategy here is the implementation of the decision taken by the majority in the Practice and Procedure Committee – comprising Justices Mansoor Ali Shah and Munib Akhtar – who have called for a full bench to determine the amendments’ constitutionality. That stance remains very much alive and awaits implementation.

In other words, if the court wants a ruling that stands on firm ground, best to let a truly full bench have the final say.

Until then, we remain in a bizarre loop: a bench created by the amendment, tasked with deciding whether that same amendment should exist. It’s a spectacle of law meeting absurdity. And unless we heed the call for a full bench, we’ll likely keep going in circles, shouting ‘Nemo judex in causa sua!’ into the void.

The writers are Lahore-based lawyers.