WHEN the 26th Amendment was controversially passed, it was trumpeted by the ruling elite as a much-needed check on the excesses committed by the judiciary. It was supposed to be a rebalancing act to restore equilibrium between the executive, parliament and judiciary. The constitutional benches, a product of the same, were supposed to usher in the revival of a truly depoliticised judiciary, with a greater focus on institutional efficiency.

However, this narrative appears to have fallen apart. Firstly, the judiciary is being perceived as more politicised than ever before. The executive has used its overwhelming powers and influence in the Judicial Commission of Pakistan (JCP) to appoint judges of its liking, and has found itself in a position to decide who will hear what kind of case, and which `junior` judge will grace the constitutional benches. All of this has been done without assigning any reasons for the choices being made, whether in relation to the credentials of the nominations or the question of why a junior judge is preferred in supersession to a senior.

Although the ruling elite denies it, many see these attempts to pick and choose as an extension of the concept of the `like-minded bench`, but on a much larger scale. It may not be the same thing as bench-picking or forum shopping, but as of late, there has been much talk, some of it in jest, of a new age of judge-picking, where the best man for the job is the man who is best for the job given.

Another case in point is the recent appointments to the high courts. The JCP had issued lists of candidates to be considered for appointment to the high courts. A large number of candidates were reputed to be impartial, principled and highly intelligent. Additionally, there were also a number of candidates who were believed to be close to the ruling class, or at the very least, preferred by them. This is not to say that they necessarily lacked competence, but that the common denominator was their perceived closeness to those in power.When the dust settled and the appointments were finally made, one could not help but think that with regard to most of these appointments, perceived allegiance, loyalty and partiality triumphed over the criteria of principles, integrity, competence and uprightness. It was a day of rejoicing for those seeking to avoid accountability, and heartbreak for those invested in the present and future of a strong and robust judiciary.

Secondly, after the emergence of the constitutional benches, the potency of writ petitions has become somewhat questionable. In boasting about record tax collections on the back of the 26th Amendment and the clearance of backlogs, the government is actually acknowledging and expressing its jubilation over indications that courts may now be prone to giving less relief, and becoming more risk averse and less courageous in taking on the government.

In the Sindh High Court, for example, some judges are perceived to be in a hurry to dismiss cases or remove them from the purview of the SHC`s writ jurisdiction. Although early disposals may make for great sound bites, a quick disposal without considered adjudication is just as serious a threat to access to justice and fundamental rights as are backlogs. This appears all the more accurate when one notes that such disposals do not really lessen the backlog, but merely move it up the appellate ladder. A similar trend has also been seen in Sindh`s district courts, where a tremendous focus on early disposalscanlead to adverse consequencesforfairness and accuracy in judicial decision-making.

In any case, this ever-tightening noose around the neck of public interest litigation and activism will continue to shake the very foundations of writ jurisdiction and the fundamental rights it aimed to protect. In fact, in some matters, a number of litigants file or proceed with matters by primarily assessing which bench will be hearing which case.

For instance, in matters before the SHC pertaining to the illegal commercial use of residential plots, as of late, many are finding it hard toobtain any relief from the court, with benches routinely sending the matter back to be resolved by the same regulator that is being accused of wrongdoing or negligence and against whom such petitions were filed in the first place.

Thirdly, whether one admits it or not, the 26th Amendment has done great harm to the overall credibility of the judiciary. The judiciary, being an institution that is missing an enforcement arm of its own, relies on its credibility and higher moral standing to command respect, adherence and compliance. When the judiciary is perceived to be under the thumb of those it is supposed to check, or under their influence, its credibility, standing and integrity come into question. In such a scenario, any and every decision it gives, whether valid or not, will face a crisis of legitimacy.

It is because of this that litigants, laymen as well as lawyers are murmuring about the judiciary`s alleged subservience and their own lack of trust or confidence in its ability to do justice or hold government authorities to account. Many are heard whispering about allegedly undeclared policies to curtail certain types of litigation by way of issuing standard orders. Whether true or not, the increasing chorus of such whispers serves as a stark reminder of the potential erosion of judicial credibility, casting doubts on the judiciary`s position as a neutral arbiter of disputes.

The reality of the situation may very well be different; however, sometimes perceptions are a more potent reality than reality itself. And this perceived reality needs to be addressed. If not, difficult times await us when judicial integrity will be unequivocally doubted, judicial credibility dismissed, perhaps irreparably, and worse still, the protector of our fundamental rights may come to be seen as a facilitator of its very violations. • The writer is a lawyer based in Karachi.

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