It is an irrefutable reality that the Twenty-Sixth Constitutional Amendment was not enacted with a noble purpose. It was conceived through backdoor deals and remains controversial. Its objective was simple: to tame the superior judiciary and subordinate it to the diktat of the executive branch of the state.
As expected, post-26th Amendment we are now confronted with myriad judicial crises, and among them the most complicated is the emergence of the “Constitutional Bench” of the Supreme Court of Pakistan. This bench alone possesses the prerogative to adjudicate matters involving constitutional questions and the enforcement of fundamental rights, thus excluding all other judges of the Supreme Court from hearing such matters. Courtesy of the 26th Amendment, its composition depends entirely upon a commission where the government of the day can orchestrate a majority.
Take the case of how the head of the Constitutional Bench was selected. Six votes from government-aligned members of the Judicial Commission were cast for Justice Aminuddin, while three judges and two opposition members voted against him. A possible deadlock was broken by Justice Aminuddin himself. He voted in his own favour, thus becoming at once candidate and elector.
In an age when others chase landmark constitutional interpretation judgments, novel doctrines, and bold contributions to fundamental rights, Justice Aminuddin has wisely chosen the nobler path of restraint. His most luminous distinction, however, lies in a judgment so original that it bewildered even the most seasoned historians: in the matter of reserved seats, he dissented with remarkable ingenuity, endorsing the Election Commission’s generous redistribution of PTI’s share to rival parties. More impressively still, he gifted the nation with a jurisprudential gem by declaring that if a state organ finds a ruling of the Supreme Court inconveniently discordant with the Constitution, it need not be obeyed. In the annals of judicial creativity, few have reimagined Montesquieu’s theory of checks and balances with such elegance.
What confronts us today is not a jurisprudence of liberty nor of justice but a jurisprudence of convenience, or worse, of fear
Judges are not only lauded for their legal acumen but also remembered for rendering decisions that Pakistan’s powerful quarters never welcomed. The exclusion of independent judges such as Justices Mansoor Ali Shah, Athar Minallah, Munib Akhtar and Ayesha Malik from constitutional matters gives a reasonable impression that the government-dominated Judicial Commission prefers judges who are not inclined to trouble the executive with dissent. The aftermath of the 26th Amendment has rendered the judiciary weak; the public increasingly believes their fundamental rights exist only in the pages of law books, while the guardians of those rights — the judges — remain silent about the violations.
History bears witness to a simple fact: when fundamental rights, particularly the right to free speech, are threatened, the judiciary becomes the most critical institution. Constitutional courts have resisted most fiercely when the winds of tyranny blew strongest. It is in those very moments that their role becomes paramount, for they are entrusted with safeguarding the rights of the public. Their noblest hour does not arrive in times of calm but in storms, when fear conspires to extinguish the very rights that breathe life into the Constitution. Lord Atkin, dissenting in Liversidge v. Anderson (House of Lords, 1942), reminded the world that even amid the clash of arms, the laws are not silent.
Independent judiciaries have always produced landmark judgments in the face of tyranny. In Kesavananda Bharati v. State of Kerala (Supreme Court of India, 1973), the “basic structure” doctrine was etched into constitutional eternity to safeguard democracy; in State v. Makwanyane (Constitutional Court of South Africa, 1995), the death penalty was struck down in the name of human dignity; in Brown v. Board of Education (U.S. Supreme Court, 1954), equality was reborn; and in New York Times v. Sullivan (U.S. Supreme Court, 1964), the fortress of free expression was secured.
Meanwhile, Pakistan’s Constitutional Bench is disappointing us at this critical juncture of Pakistan’s history. Its record thus far is defined by three judgments that have impaired the spirit of constitutionalism: first, the legalisation of trying civilians before military courts (obliterating the right to a fair trial); second, the deprivation of PTI’s reserved seats and their magnanimous redistribution to other parties (a flagrant violation of the popular mandate); and third, the validation of judicial transfers in the Islamabad High Court (undermining the right of access to justice). Unfortunately, each judgment has served the convenience of the government of the day and the designs of its powerful patrons. What confronts us today is not a jurisprudence of liberty nor of justice but a jurisprudence of convenience, or worse, of fear.
It must be whispered into the ears of judges on both sides of the divide that history is seldom merciful. As a student of law, political science and history, I am convinced that those judges who displayed the courage to declare the trial of civilians in military courts unconstitutional will be celebrated across generations, while those who sanctified such trials will be unfortunate footnotes of history.