Fait accompli

A SLEW of secretively conceived and hastily enacted legislation has achieved its intended result: the powers of the Pakistani judiciary have been split in two. A ‘constitutional bench’ has been created within the Supreme Court to hear the most important cases, to be headed by Justice Aminuddin Khan who is fourth in the institution’s seniority list. It seems that the opinions of the three senior-most judges, including the chief justice, regarding the composition of the constitutional bench were not considered. Instead, going against their assessment, the government did what it had empowered itself to do through the 26th Amendment: it chose the bench. The government has appointed Justices Aminuddin Khan and Ayesha A. Malik from Punjab, Justices Jamal Khan Mandokhail and Naeem Akhtar Afghan from Balochistan, Justices Muhammad Ali Mazhar and Hassan Azhar Rizvi from Sindh, and Justice Musarrat Hilali from KP to serve on the constitutional bench. Justice Aminuddin and Justice Afghan had, in their dissent in the PTI reserved seats case, held the majority decision ‘unconstitutional’ and said it should not be implemented. Justice Mandokhail, too, had dissented, and his separate opinion had been concurred to by the then chief justice. However, Justices Mazhar, Rizvi and Malik were part of the majority verdict. Justices Mazhar and Hilali were also part of the bench that heard the PTI intra-party elections case, which had controversially deprived the party of its ‘bat’ symbol shortly before the Feb 8 election.
One would not be too far amiss in surmising that the government’s choices were guided by its perceptions of judicial leanings in the apex court. Enough has been discussed in the public sphere about the Supreme Court to pinpoint who is viewed favourably by the current regime, and who has fallen afoul of its plans. However, it remains to be seen how these judges, appointed to fulfil a solemn duty, will act. One of the most important cases that may be fixed before them is a review of the reserved seats judgment, on which six of the seven judges have already expressed their opinion. At question will be the Supreme Court’s writ. It also remains to be seen what the dynamic of the constitutional bench will be, and how its head will engage with Chief Justice Yahya Afridi now that he has assumed an unprecedented power. Let us hope for the best.
Published in Dawn, November 7th, 2024