Turf war between Pakistan’s judiciary and executive

The conflict between the executive and judicial branches of governments is a matter of routine in democracies across the globe. The Executive tries to resist the powers of the judiciary which sometimes disrupts the executive’s initiatives perceived unconstitutional by the courts. The Executive generally strikes back with a constitutional amendment to overcome judicial objections. 

On February 5, 1937, US Democrat President Franklin D. Roosevelt (FDR) shocked America by introducing the Judicial Procedures Reform Bill under which he was to retire six conservative Supreme Court judges who had attained 70 years of age and planned to pack the court with his appointees in order to get favorable verdicts. 

Earlier, the Supreme Court and these six judges in particular, had halted a number of FDR’s key projects introduced by him to fight the great depression under his ‘New Deal’ program. Although the law was eventually not passed, the Supreme Court became very friendly after the introduction of the bill and did not resist FDR’s plans. 

The Labour government in the UK had to fight various battles with the judiciary mostly on the way the government treated accused terrorists following the introduction of the Human Rights Act of 1998. The court stalled many executive orders to deport the accused terrorists.

The law passed to neutralize the Supreme Court judgment, if passed, may not go unchallenged by the assertive judiciary leading to a serious confrontation between the two institutions. 

Ahmed Bilal Mehboob

In India, Prime Minister Indira Gandhi’s election was set aside by Allahabad High Court in 1975. The PM retaliated by imposing an emergency which curtailed the powers of the judiciary. Earlier in 1951, the Patna High Court in India had struck down the Bihar Land Reform Act and the Nehru government at the center had to provide immunity to the law by passing the first constitutional amendment. The judiciary had also upheld the validity of the Privy Purses of former rulers of princely states in India in 1970 which was earlier abolished by the Indian President. Eventually the government overcame the judicial challenge by passing the 26th Constitutional Amendment. 

The parliament and the executive in Pakistan are also in the middle of an intense battle to reset the balance of power among the judiciary, the executive and parliament. At the center of these efforts is a constitutional amendment which the coalition government is struggling to get passed through the parliament. 

Why is this amendment needed now? First, because the judiciary has started asserting its authority with greater vigour which the government and the security establishment is increasingly becoming weary of. Second, relations between the executive and the judiciary have lately experienced some extra ordinary turbulence. 

The most recent resurgence of the judicial assertiveness started when early this year, the Supreme Court reinstated Justice Shaukat Siddiqui, an outspoken judge of the Islamabad High Court who was sacked in 2018 after he publicly accused intelligence agencies of pressurizing the judges to obtain favorable verdicts. 

Justice Siddiqui’s exoneration emboldened six judges of the IHC and they, in a joint letter to the Chief Justice of Pakistan, accused intelligence agencies of trying to blackmail them into getting desired judgments. The letter sent tremors down the government and more judges reported similar harrowing experiences leading to widespread condemnation by the people, bar associations and civil society. 

While the executive was on the defensive, the judges started taking bold decisions such as setting aside various cases instituted against former PM Imran Khan, making the government nervous. But the tipping point came when in July this year, a majority judgment of the Supreme Court allocated 77 reserved seats for women and non-Muslims to the PTI in the assemblies which were earlier denied by the Election Commission. More remarkably, the Chief Justice lost the support of the majority of judges in this case. 

The parliament first responded by passing a law which arguably neutralized the Supreme Court verdict and later initiated efforts to amend the constitution to rebalance the power between judiciary and parliament. Although the text of the proposed amendments is not public, the details leaked to the media indicate an effort to significantly shift the balance of power in favor of the executive. The amendments propose to create a more powerful Federal Constitutional Court in addition to the Supreme Court; appoint a current CJP who is retiring in about a month as head of the Constitutional Court for the next three years; change the procedure of appointing the senior most judge as CJP and instead, the government would pick one of the five top judges as CJP. 

The law passed to neutralize the Supreme Court judgment about the reserved seats and the proposed constitutional amendment, if passed, may not go unchallenged by the assertive judiciary leading to a serious confrontation between the two institutions. The proposed amendments, if passed, will kill the prospects of some Supreme Court judges of becoming Chief Justice, making the legal battle a game of high personal stakes as well. 

– Ahmed Bilal Mehboob is the president of Pakistan-based think tank, PILDAT.

X: @ABMPildat