At war with itself

IT has gone beyond polemics. The internal fracas has split the country’s top judiciary. While tensions had been simmering for a long time, the latest presidential ordinance amending the Supreme Court Practice and Procedure Act has brought the conflict in the judiciary to a head.
With just weeks left until his retirement, an embattled chief justice now faces a virtual revolt in the ranks, with senior judges challenging the legality of the controversial amendment. The war within has intensified, with the institution facing an unprecedented onslaught on its independence from a military-backed regime trying its level best to clip the apex court’s wings.
A divided house — in which the chief justice’s own role is being questioned by his fellow judges — seems to have made the fightback by the bar and the bench against the attack on the judiciary much harder. The dispute over the formation of a five-member bench hearing the review petition on the ruling on the defection clause has heightened tensions, with Justice Munib Akhtar refusing to be part of the bench.
Third on the seniority list, Justice Akhtar, who was the author of the 2022 ruling, was earlier removed from the three-member Practice and Procedure Committee reconstituted by the chief justice, following the promulgation of the presidential ordinance. Justice Mansoor Ali Shah, the senior puisne judge, has also refused to be part of the committee, objecting to the exclusion of Justice Akhtar. He has questioned the legality of the ordinance.
With the two senior-most judges opting out, the committee, which was handpicked by the chief justice, has become questionable, as has the five-member bench reconstituted under it. In his letter to the chief justice, Justice Akhtar expressed his reservations over the bench formed by the reconstituted committee, citing it as the reason for his decision not to be part of the bench.
Many observers believe that the outcome of the review petition on the defection clause is very predictable, given the composition of the bench. The overruling of the 2022 judgment, which not only unseated the defector but also did not allow their vote to be counted, could help the ruling coalition get the votes of PTI legislators who have been coerced into changing party loyalties.
That could help the ruling coalition muster the two-thirds majority in parliament required to pass amendments that would change the very foundation of the Constitution and curb democratic rights. The previous attempt by the regime was defeated because of insufficient numbers. The urgency in fixing the hearing of the review petition has also raised questions about possible motives.
Justice Akhtar has also objected to the chief justice heading the bench against the decision of the previous committee; it was pointed out that the review bench was to be headed by Justice Mansoor Ali Shah. The overturning of the decision also raises questions about the chief justice’s impartiality. There have been observations that the judgment on the review petition won’t take much time and will be announced well before Oct 26, the day the chief justice is supposed to retire. Some federal ministers and members of the ruling coalition are already talking about attempting to get the controversial constitutional amendment passed in the next couple of weeks.
Apparently, the ruling coalition is banking on the removal of restrictions on the defectors to muster the required numbers in parliament. There may be a strong argument for overturning the ruling on 63-A. Yet the way the bench has been structured reinforces concerns that it was meant to ensure a positive outcome.
One would not expect the chief justice to replace Justice Shah with himself just weeks before he is supposed to doff his robes. Such a controversial move would not be good for his legacy, which, many point out, has already been tarnished by allegations of playing a divisive role. Instead of uniting the judges and defending the independence and sanctity of the apex court, recent decisions by the chief justice are being seen as widening the divide. The existing polarisation has immensely damaged the image of the top judiciary. The open polemics among the senior judges have made a mockery of the highest judicial forum.
It is true that historically our top judiciary does not have an enviable record. It has endorsed the actions of military dictators. In the recent past, we have seen chief justices trying to undermine the powers of the executive and parliament through populist actions, creating a serious imbalance of power among the state institutions.
With the courts becoming the main battleground of political parties, it has seemed inevitable that the judges would be given a political colour. The involvement of the security establishment in judicial matters has also distorted the system of justice. It is apparent that judicial expansionism, which is encroaching on the domain of the executive and parliament, has had the backing of a security establishment that seeks to undermine elected civilian dispensations and parliament.
The independence and authority of the institutions should not be destroyed through controversial laws. There is a need to establish a balance among all state institutions. But what the current regime and the establishment are trying to do is to check the assertion of independent voices in the judiciary. Those judges who have dared to speak out about the establishment’s interference are being targeted. The proposed amendments to the Constitution are not just about making the judiciary subservient to the executive and the security establishment but also about curtailing the public’s fundamental democratic and human rights. The amendments would virtually clear the way for the establishment of authoritarian rule.
Not surprisingly, the rupture in the judiciary is being encouraged by the military-backed dispensation. It is a dangerous game, which will weaken not only the judiciary but also the democratic process in the country. Without a strong and independent judiciary, the country cannot experience a viable and robust democratic process. The country needs political reconciliation and a strong parliament; what it does not need are weakened constitutional foundations. More importantly, a weak and divided judiciary can defend neither its independence nor the rule of law.
The writer is an author and journalist.
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Published in Dawn, October 2nd, 2024