There is speculation that Mr Nawaz Sharif is contemplating another constitutional amendment, this time to clip the wings of the judiciary. The rumour was that Mr Sharif intended to reduce the age of Supreme Court (SC) judges from 65 to 62 years (currently that of High Court judges) and immediately relieve those who exceed this limit. When this led to considerable disquiet in certain quarters, a handout was issued by the law ministry denying any such move. Now we hear that Mr Sharif is thinking of setting a 3-year limit to the tenure of SC judges. If this comes to pass, much the same sort of objective as in the earlier proposal will be achieved. A number of SC judges, including the Chief Justice of Pakistan (CJP), will be expected to pack their bags and go home promptly. What’s the problem?
It seems that Mr Sharif is not terribly happy with the idea of living with a SC whose benches are not packed with judges hand-picked by him. He is, in particular, interested in having a CJP of his own choice so that the judiciary does not get up to any “mischief” when the executive starts to throw its weight around.
This line of political thinking is pitted against that grain of judicial philosophy which was agitated so eloquently and forcefully by the SC during Benazir Bhutto’s time. We refer, of course, to the famous “judges case” in 1996 when the SC held that (a) judges could not be appointed to the benches without the approval of the CJP (b) that upon the retirement of the CJP, the senior-most serving judge of the SC would be legitimately entitled to the top job.
It mght be recalled that when Ms Bhutto was ranting against this decision, Mr Sharif was publicly all for it. Indeed, he seemed to relish the clash between the PM and CJP Justice Sajjad Ali Shah and did everything in his power to exploit it to his advantage. However, now that he is in her shoes, he appears to be dead set against it. This will doubtless lead Ms Bhutto to take up cudgels on behalf of the SC. It might also — and this is where the potential flashpoint lies — stiffen the back of the judiciary and plunge the country into a constitutional crisis or breakdown. How might that happen?
The issue of the executive’s powers versus those of the judiciary is definitely hanging fire. Mr Sharif has, on several occasions, expressed his annoyance over the “deficiencies” of the judicial system and vowed to “make it better”. He hopes to do this by the following means: (a) exert pressure on the judges to return quick verdicts of guilty in all accountability cases lodged by the PM’s Ehtesaab Cell; (b) set up special courts with special laws for summary trials by chosen judges without recourse to lengthy appeals before the superior courts (c) amend the constitution so that the judiciary cannot create hurdles in the path of his political ambitions (d) pack the benches so that the judiciary reverts to its old position as handmaiden to the executive.
Many judges, however, see things in an altogether different perspective. They have struggled long and hard to acquire a modicum of independence. If anything, their successful opposition to the attempted encroachments of Benazir Bhutto in 1995-96 has stiffened their resolve to resist similarly sinister moves by Nawaz Sharif. Justice Shah has reiterated his determination time and again to exercise his “suo moto” powers to hold government accountable while the CJ of the Lahore High Court has not shied away from publicly backing his chief to the hilt. Their answer to Mr Sharif’s charges against the judiciary is contained in the recently published Report on the Criminal Justice System by the Pakistan Law Commission which puts much of the blame for the slow pace of justice on the executive and the bar. In fact, the judges are now under so much pressure from Mr Sharif that they may be compelled to mount a challenge to the supremacy of the legislature over the constitution in order to retain their independence.
All this is, of course, hardly reassuring. We saw how Benazir Bhutto’s arrogance led her into a path of needless confrontation with the SC, with dire consequences for her political longevity. Are we now fated to bear witness to a similar clash of interests between an ambitious Nawaz Sharif and a beleaguered SC?
Mr Sharif should pause and reconsider. If his concerns are limited to genuine deficiencies in the justice system — and there are many such — there is no reason why he cannot sit down with Justice Shah and hammer out a workable formula which ensures that the objectives of speedy and cheap justice are sufficiently met without unduly compromising the notion of “due process”. But if his affliction is with unaccountable power, he must be resolutely told where to get off. Indeed, after the passage of the 13th and 14th amendments, the SC is now our last hope for democratic survival. If Mr Sharif is bent on becoming an irresistible force, the SC must get ready to face him like an immovable object.