A recent episode of Pakistani television talk show Merey Mutabiq included a disturbing conversation with Qazi Anwar, President of Pakistan’s Supreme Court Bar Association, in which several troubling assertions were made including that the parliament does not have the power to amend the constitution, and that the Supreme Court has the privilege of striking down any part of the constitution of which it disapproves. The proliferation of such statements and actions by justices and advocates of the Supreme Court are deeply troubling, and pose a potential threat to the stability of Pakistan’s emerging democracy.
Just as Pakistan’s first democratically elected government in decades was on the brink of undoing a number of power grabs by past military dictators, a wrench has been thrown in the works by an opposition politician and party leader. Mr. Nawaz Sharif, head of the opposition Pakistan Muslim League-Nawaz party (PML-N) is holding up passage of a package of constitutional reforms that would restore proper checks and balances on power.
Included in his stated reasons for opposition is that Mr. Sharif would like to see implemented a a seven-member judicial commission to nominate justices to the superior courts. The commission, as envisioned by Mr. Sharif, would include three serving judges of the Supreme Court, led by the Chief Justice of Pakistan – and a seventh member to be selected by the chief justice himself. This obviously stacks the court for the Chief Justice.
Pakistani newspaper Dawn reacted strongly to this proposal, saying:
The problem that will be created by a judicial commission with a majority formed by serving judges of the SC and a handpicked choice of the CJP is not very difficult to identify. The superior judiciary is designed such that while every justice on a court has one vote, the chief justices are administratively the ‘bosses’. So it is very unlikely that in the presence of a Chief Justice of Pakistan who wants a particular nominee, the other justices on the commission would disagree with him. Also unlikely is the possibility that a handpicked seventh member of the judicial commission will oppose the CJP’s choice. And even if the CJP is an accommodating sort and encourages developing a consensus nominee among the judges and his handpicked seventh member, it would mean that the superior judiciary would determine by itself — because of the simple majority it would enjoy on the judicial commission — who can or cannot become a judge of a high court or the Supreme Court.
A hermetically sealed judicial institution of that sort is antithetical to the principles of democracy. Why should the present membership of a state institution determine what its future membership will be? Remember that judges are free to vote with their conscience once sworn in because it is virtually impossible to remove them before they retire (which is how it should be). What Pakistan needs is a judiciary free from interference, not a judiciary that is independent in the sense of deciding its own membership. Any proposal by Mr Sharif or anyone else that would effectively give the superior judiciary a majority on the judicial commission must not be accepted.
In fact, Mr. Sharif’s recent surprise decision to block passage of the democratic reform package has been met with near universal disdain in the mainstream Pakistani media. English-language daily The Daily Times has had harsh words for the former Prime Minister.
As for the issue of the judicial reforms, it was at the behest of the PML-N that a seventh member was added to the judicial commission on the appointment of judges. The constitutional reforms committee conceded to that demand but now the PML-N chief has gone further to ask that the prime minister should consult the chief justice (CJ) on judicial matters and that the CJ should be authorised to appoint the seventh member. Mr Raza Rabbani is right in rejecting this proposal because the whole purpose of the judicial commission would be defeated. The logic behind having this commission is to ensure that there is a transparent mechanism in the appointment of judges by taking it out of the purview of any one person. Unfortunately, Mr Sharif’s strategy of escalating demands does not make any sense.
Pakistan has the opportunity for the first time to rid its constitution of anti-democratic power consolidation measures adopted under duress of military dictatorship. It defies all logic that this package of democratic reforms put forward by the democratic government and initially agreed to across parliament should be held hostage by one man seeking to further consolidate power in another office – this time the Chief Justice.
Pakistan has come too far since the days of Gen. Zia-ul-Haq. The time for naked power grabs is in the past. If Mr. Nawaz Sharif cannot participate in honest democratic politics, putting the good of the nation above his personal interests, perhaps Pakistan needs to move on without him. Pakistan’s National Assembly should adopt the package of democratic reforms as they were agreed to, and get on with doing the people’s business.