The original malice

Senior lawyers agree if Justice Shah is appointed as the next CJP, there will be less criticism on proposed amendments

ISLAMABAD:

The federal government has learnt to morph, as the need presents itself, by constantly altering its plans to control the superior judiciary through a judicial package being introduced in the 26th constitutional amendment.

First, it planned to extend the tenure of its preferred Chief Justice Qazi Faez Isa. Later, it was suggested that the retirement age of every superior court judge be extended by two years. It was also proposed that a Federal Constitutional Court be formed to exercise jurisdiction under articles 184(3), and 185.

However, after facing resistance from JUI-F Supremo Maulana Fazalur Rehman, now the ruling government has been compelled to introduce a constitutional bench to the Supreme Court which will be formed by the Judicial Commission of Pakistan. This body includes representatives of the executive, parliament, and judiciary as members. Senior lawyers believe that the aim of such a "constitutional division" is to control the apex court.

Likewise, efforts are being made to supersede seniormost judge Syed Mansoor Ali Shah, and block his path to becoming the next chief justice of Pakistan. A new panel, comprising three senior SC judges, is being suggested to appoint the CJP.

One section within government wants to appoint Justice Yahya Afridi as next the CJP, but it is unclear if that will materialise. Lawyers believe that this is an attempt to compel two senior judges, namely Justice Syed Mansoor Ali Shah and Justice Munib Akhtar, to resign from their position.

Justice Shah may be superseded as he is an independent judge. Unlike many others, he has not been linked to any political party.

Advocate Abdul Moiz Jaferii says that the new proposal brings forth the malicious intent behind the first proposal.

"In the first draft, we were told that the executive will only appoint the first chief justice of the apex court. We are now being told that this will be a continuous process. This upends decades of judicial experience, which had taught us that in order for independence to thrive, the top tier of the judiciary must be insulated from executive influence," he says.

Jaferii states that after failing of form a constitutional court, the government is creating the same creature within the Supreme Court itself. "A division will exist, and it will be within the influence of parliament to determine which judge will be allowed to sit in the higher division of the court. This is the original malice, out for all to see," the lawyer lamented.

"There is nothing of the Constitution, or the need to address backlog here. It is the simple original desire to control independent judges and to bring an institution to heel," he adds.

Barrister Asad Rahim Khan states that if the latest draft is anything to go by, the outright disaster of a federal constitutional court has been averted.

"And yet, it is almost as disastrous that the chief justice will be chosen from a pool of three, by a crew of ruling party MNAs. This will inject needless instability in the appointment process and badly disfigure the independence of the judiciary," Barrister Khan believes.

He continues that a three-year extension clause also ensures that at least three future occupants of the office of Chief Justice will be purged. "What we are seeing is the blatant commandeering of the judicial branch by the executive," he says.

Senior lawyers agree that if Justice Shah is appointed as the next CJP, there will be less criticism on proposed amendments in the Constitution.

However, if he is superseded as some predict, lawyers will react strongly and the SC judge will be invited to every bar association to bear the torch for the legal fraternity.