End of judiciary?

The Senate passed the 27th Constitutional Amendment Bill on Monday amid the opposition’s protest. Law Minister Azam Nazeer Tarar presented the 59-clause bill, which received the required 64 votes. Apart from the treasury members, the Awami National Party (ANP), PTI-backed Saifullah Abro and Jamiat Ulema-e-Islam-Fazl’s (JUI-F) Ahmed Khan were among the senators who voted in favour of the amendment. The Tehreek-e-Tahafuz Ayeen-e-Pakistan (TTAP), a multi-party opposition alliance, has announced a nationwide protest movement against the proposed constitutional amendment. Apart from this, civil society has also come into action against this amendment. The Human Rights Commission of Pakistan (HRCP) says the government’s haste – including the absence of any meaningful consultation with the political opposition, the wider legal fraternity and civil society – calls into question the very intention behind moving this amendment bill. The human rights body has also said the bill’s content “has alarmed constitutionalists, the legal fraternity, human rights defenders and many others who believe in the independence of the judiciary and the tenets of civilian supremacy in a democracy” – and has planned an urgent consultation with a wide range of stakeholders to examine the proposed amendment and its far-reaching impact on the country’s polity and society.

A group of retired judges and senior lawyers have also penned a letter to Chief Justice Yahya Afridi, seeking a full court meeting over the proposed 27th Amendment. The retired judges and senior lawyers have described the proposed amendment as “the biggest and most radical restructuring of the Federal Appellate Court structure since the enactment of the Government of India Act, 1935”. They say that neither civilian nor military governments in Pakistan’s history had ever attempted, let alone succeeded, in relegating the Supreme Court to a subordinate entity or depriving it of its constitutional jurisdiction. The letter urges the apex court to call a full court meeting immediately and maintains that the apex court “has every right and power to give its input” regarding any constitutional change that affects its structure and authority. The judges are not the only ones outraged by the amendment; there has been an outpouring of anger and frustration by the opposition as well as civil society on the proposed amendments which are quite rightly being seen as a direct attack on the independence of the judiciary. There is ample history to show that the judiciary’s role in the past has been instrumental in undermining the democratic process, but this should not be used as an excuse to defang an institution. The real answer to judicial overreach should have been meaningful reforms. Instead, what we have witnessed is a complete takeover by the executive over judicial independence. Any judge who seems ‘unfavourable’ to the government of the day will be ‘penalised’ through this new amendment.

Legal observers say that the 26th Amendment was an attempt to subjugate the judiciary but it has been ‘buried’ now through the 27th Amendment, adding that parliament and most political parties seem to have been co-opted and do not want more freedoms but less. Is this the end of the judiciary? Is this the end of democracy? We may not know the answers just yet, but one thing is certain: the silence of institutions, political actors and citizens in this moment will define Pakistan’s democratic future. The erosion of judicial independence is never the work of a single day – it happens gradually, clause by clause, amendment by amendment. What the country needs now is a collective and complete dialogue to seriously defend the spirit of constitutionalism and rule of law before both are consigned to history.