Context and intentions

MOST critiques of the 26th Constitutional Amendment focus on its impact on judicial independence.
Thankfully, some clauses related to the supposed sanctity of national security under Article 199 and the creation of a separate constitutional court did not make it to the final draft.
Nevertheless, by changing appointment methods, creating new constitutional benches through a political committee, assigning performance evaluations to parliament, and parliamentary control in the chief justice’s appointment, judges are more likely to be ‘politicised’.

Whereas previously factionalism and groupings were confined to internal bench and bar politics, one can argue that the amendment will enhance the role that political parties and party leaders play in judicial careers.
These concerns have been raised by opposition politicians from the PTI, civil society, and significant segments of the legal community. Those invested in the independence of the judiciary as a constitutional and political ideal are within their right to argue against the amendment.
In my view, a different type of critique can be based on the political situation in which these drastic changes have taken place. In other words, one needs to look past what has happened ‘on paper’ and place it in the context of hybrid regime dynamics that began in 2018 and have accelerated to an unprecedented degree in the last two years. Here, four context-specific issues are worth mentioning.
The first issue is the urgency with which this was passed through. It is clear this was because the seniority principle needed to be set aside because it worked in the favour of someone who wasn’t favoured by the state. So this amendment carries the element of being person-specific, at least in the current moment.

The second issue is the nature and political importance of cases that will now be heard by a constitutional bench. These include litigation on the status of election tribunals and the functioning of the ECP, both of which have a direct bearing on the viability of the ruling coalition.
Some judges in various high courts and the Supreme Court had shown a degree of scepticism regarding how the election was carried out and the way in which election-related trials were being conducted. There was a reasonable chance that some results would have been overturned, after recounting or repolling. This can still happen but the amendment offers a temporary insurance policy through increased intervention in bench composition.
Similarly, favourable bench compositions may also help secure the status of military courts and the trials of those accused of ‘fomenting mutiny’ in line with the regime’s preferences. Resultantly, the sanctity of a free trial and of civil and political rights, while never in great shape in Pakistan, are now even more vulnerable.

A third issue is the absence of deliberation that went into the amendment. In the first attempt, no one, save a few, had actually seen the draft. There was no transparent consultation, nor any engagement on the legal and political reasoning behind it.
Things improved marginally in the second round, with drafts at least being shared among the parliamentary committee and party leaders, but again with an alarming level of secrecy and opaqueness. So much so that just a few days before the actual vote, a member of the Senate declared he had no response to anyone who asked what the amendment actually entailed. Ultimately it was passed through both Houses in a combined total of six hours.
It is a bit strange that an amendment being justified through the rhetoric of parliamentary supremacy had little to do with actual parliamentary functioning. Drafted elsewhere, deliberated by a select few, and passed in supreme haste.
Fourth, and perhaps most egregiously, the ways in which votes were shepherded showed a violation of democratic norms, even if they were strictly legal thanks to a favourable 63-A judgment. The reliance on floor-crossing of at least three MNAs along with the ‘disappearance’ of two BNP-M senators who emerged in the parking lot on the night of the vote places significant question marks on the entire act.
Some will inevitably respond by saying that the amendment should be evaluated on the basis of what it proposes, rather than the manner in which it was passed, the intentions behind it, or the context that marked its birth. While intentions and tactics can be suspect, they argue, the life of an amendment extends beyond the present and it may achieve the desirable goal of parliamentary supremacy in the long run.
One can concede that parliamentary oversight on judicial affairs is not necessarily a bad thing. Many countries provide for input in some form, and on the basis of various forms of judicial ingress and overreach since 2007, one can make a case for using a constitutional amendment to recalibrate the relationship between parliament and judiciary in Pakistan.

However, to this line of reasoning, there exists a relatively simple response: democracy’s survival is not just dependent on the existence of laws, but on the degree to which the polity actually believe in it as a form of government. It is that belief which provides legitimacy to the state and its institutions, including parliament.
A parliament that serves the interests of the executive through murky interventions can very well do so by formally jumping through all legal hoops. It can put forward the rhetoric of accountability and correcting past wrongs. It may even justify its actions on account of parliamentary strengthening and reconfiguring an imbalance between the elected and the unelected.
But in the backdrop of compromised intentions and context, it may very well end up delegitimising itself, undermining the very goal that it claims to achieve.
The writer teaches politics and sociology at Lums.
X: @umairjav
Published in Dawn, October 28th, 2024