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The 26th constitutional amendment was, finally, passed by two-thirds majority in Pakistan’s Senate and National Assembly last week, after navigating a tortuous path through several leaked drafts and efforts to weld consensus with the Opposition.
Maulana Fazlur Rehman’s Jamiat Ulema-e-Islam Fazl (JUI-F) finally came on board with its five senators and eight MNAs but allegations of induced defections or forcible abductions of Pakistan Tehreek-e-Insaf (PTI) and Balochistan National Party (Mengal) (BNP-M) legislators surfaced.
The intention and unseemly haste of the ruling Pakistan Muslim League (Nawaz) (PML-N) – Pakistan People’s Party (PPP) coalition in railroading through the amendment, with the tacit backing of the powerful military establishment, was to de-fang a higher Judiciary before the incumbent Chief Justice (CJ) Qazi Faez Isa’s retirement on October 25. A majority of Supreme Court (SC) judges were perceived to be biased towards the PTI, especially after the July 12 verdict in the reserved seats case.
This aim may not have been accomplished, though the seniority rule of succession in the SC has been dispensed with. The role of a special parliamentary committee has been injected into the selection process of the CJ. The amendment also provides for a separate constitutional bench, judges for which are to be appointed by an enlarged Supreme Judicial Council (SJC) which will now include politicians and others apart from senior judges.
As Qazi Faez Isa’s term ended on October 25, the parliamentary committee selected Justice Yahya Afridi – third in the SC’s pecking order – as his successor for a three-year term, superseding Justices Mansoor Ali Shah and Munib Akhtar. Ironically, neither of the superseded judges chose to resign. As things stand, both would continue till their retirement dates beyond Afridi’s three-year tenure: Shah up to November 2027 and Akhtar till December 2028.
Justice Afridi, 59, hails from Babri Banda village near Kohat in Khyber Pakhtunkhwa. He studied in the elite Aitchison and Government Colleges, Lahore, and later, completed his LLB/LLM from Cambridge, United Kingdom. Afridi was elevated to the SC in 2018. In his recent judgments, he has built a non-controversial and apolitical reputation.
Impressive start, contentious end
Qazi Faez Isa leaves behind a rather mixed legacy. When he became CJ, he held a strong anti-establishment reputation because of his judgements in Balochistan and in the Faizabad Morh case of 2017, where he castigated security agencies for their inefficiency. He was hailed as a liberal when he introduced open televised hearings of SC deliberations. He readily constituted full court benches despite being unsure of majority support within. He stopped cherry-picking in nominating junior judges to benches. Isa did not hesitate to right some historical ‘wrongs’ of the SC, as in the infamous Zulfikar Ali Bhutto hanging case. He reversed the controversial Art 63 A ruling, permitting now, the counting of votes by defecting legislators despite their impending disqualification, as is clearly specified under Art 95.
Yet, his January 2024 judgement banning the ‘bat’ symbol for the PTI drew a lot of flak. An impression gained ground, despite lukewarm denials, that he was supporting moves for an extension in tenure. On the eve of his departure, a disgruntled Mansoor Ali Shah wrote a damaging missive accusing Isa of ‘self-righteousness’, behaving “like an ostrich, with his head in the sand, remaining complacent and indifferent to external influences and pressures on the judiciary,” fostering “bitter divisions and fracturing relationships of colleagues within, consistently failing to engage in dialogue and refusing to lead with consensus-building”.
Afridi has begun well by inducting the senior-most judges in the bench allocation committee. Despite personal friendships with superseded Judge Mansoor Ali Shah and another perceived pro-Imran Khan judge, Justice Athar Minallah, with whom he shares ownership of a legal firm, he will face challenges from within, as every other case may be referred to an over-burdened constitutional bench.
The civilian regime in power may now feel less insecure. There is talk of a 27th amendment being tabled soon, which may take up other controversial issues like the trial of civilians in military courts, which the military establishment may be pressing for to bring those implicated for the May 09, 2023 violence to book, including incarcerated former Prime Minister Imran Khan. Meanwhile, the divisions within his already faction-ridden party are likely to be exacerbated.
The taming of the Judiciary may have moved a step closer though Pakistan’s state institutions stand exposed for their continuing disregard for democracy, rule of law, and human rights. Those seeking diminution of the military’s role in the country may have to wait longer.
(The writer retired as Special Secretary at the Cabinet Secretariat, Government of India)