26th Amendment: The end of judicial independence

If you’re a Pakistani citizen, you’re likely not a big believer in civil liberties. Why would you be? This is a country where, just yesterday, peaceful protestors from the Baloch Yakjehti Committee were arrested for the crime of speaking out against state-sponsored abductions. The week prior, their leader, Dr Mahrang Baloch, was barred from boarding a flight and booked under the Anti-Terrorism Act.

Dr Baloch has since managed to gain temporary respite via a Sindh High Court order restraining the police from arresting or harassing her. It’s not much, but it is a small win that was made possible thanks to the high courts. In another Islamabad High Court hearing a few months ago, Justice Babar Sattar unearthed the existence of a mass surveillance system which has been intercepting telecom data (and sharing it with you-know-who) without any legal or regulatory oversight. His final judgement in the case nearly transformed the digital privacy landscape.

The law in Pakistan has always been twisted to serve the rich and powerful, but thanks to the latitude offered by the Constitution and judicial interpretation, the courts have often been the last bastion of relief for citizens oppressed by a neocolonial state. But no longer.

After the passage of the 26^th Constitutional Amendment, a High Court judge is considerably less likely to give a ruling against the government or the establishment since their appointment will now be determined by the Judicial Commission of Pakistan (JCP), a majority of whose members will be appointed by the government.

The same Commission also has the authority to assess the “performance” of High Court judges and potentially take disciplinary action against them, a warning sign to any judge who steps out of line. Judges already face informal pressures from the establishment—Justice Babar Sattar was reportedly told to back off from his scrutiny of surveillance systems during the aforementioned case—now they’ll have to contend with possible legal consequences too.

The appointment process of the new Supreme Court chief justice has been even more blatantly politicized. Rather than the senior-most judge becoming the next chief justice as is customary, now a 12-person committee comprising entirely of politicians (with a majority from the ruling parties) will choose from one of the three most senior judges of the Supreme Court.

Thus, on 26 October 2024, Pakistan will have a new puppet Chief Justice, beholden to the establishment’s political stooges for his authority. He will have some new powers, such as the ability to immediately transfer any case being heard in a High Court to another (more establishment-friendly) High Court or to the Supreme Court itself.

Beyond that, it is unclear what jurisdiction he will actually have, as all important constitutional and legal questions will now be deliberated upon by constitutional benches comprising of judges selected by the JCP, a fancy way of saying that the government will get to decide which Supreme Court justices are assigned to hear their “sensitive” cases. So on issues such as the military trial of civilians, the banning of civil rights groups under the guise of terrorism, or PTI’s right to be a political party, it’s not difficult to imagine who the court will side with in its judgements. The few judicial protections we had are being eroded in front of our very eyes.

The establishment is taking these drastic steps because they know that they severely lack legitimacy. Ironically, their decision to boost Imran Khan in the 2010s worked so well that their current civilian partners, PPP and PML-N, are completely discredited in the eyes of the general public. Nawaz Sharif couldn’t even win his seat in the most recent elections without some hilariously amateurish vote rigging, in a city that he’s ruled for the better part of 50 years.

So instead, their solution is to tighten the coercive apparatus further. This was evident in the February general elections, the most farcical in recent history where PTI wasn’t allowed to run as a political party or hold a single event (even a virtual rally was crashed by shutting down the entire nation’s internet). And it is becoming more and more apparent each time they invoke Section 144 to block protests.

Currently Section 144, a colonial-era law that prohibits any gatherings of more than four people, can only be imposed for up to seven days. But that may soon change, as a new law being passed by the Punjab Assembly will allow the provincial government to impose Section 144 for as long as 90 days at a time. Thinking about challenging the law in court? The judiciary’s already been taken care of. What about stepping out on to the streets? Good luck with Section 144—you and your three friends are less likely to end the system, and more likely to end up in the back of an unmarked Vigo.

Oh well, at least we have economic prosperity.

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What I’m reading this week:

Pakistan promised China a new militarized naval base, leaked documents reveal (Murtaza Hussain and Ryan Grim, Drop Site News)

The potent powerlessness of Leftist politics in African states (Ken Opalo, Substack)

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