raditionally, the judiciary has been a loyal handmaiden to the executive. This is a hangover of colonial rule when the judiciary was in the service of the British Raj. But it is also a fact that repeated and long doses of civil-military authoritarianism since 1947 have bent the judiciary to the will of the executive. The Movement for the Restoration of the Judiciary (MRJ) in 2008-09 – aptly named – was aimed at achieving a state of autonomy for the superior judiciary. But its success so went to the head of its leading lights that nothing less than “independence” was finally acceptable. Under the circumstances, the judiciary acquired the power to self-appoint and self-regulate itself – unprecedented elsewhere – without even a fig leaf of parliamentary oversight or accountability. However, when the pendulum swung so far, such extraordinary power went to the head of a few judges leading to some highly erratic judicial activisms and interventions which made a mockery of justice.
In particular, former Chief Justice of Pakistan, Iftikhar Mohammad Chaudhry, who ruled the roost for eight years, will long be remembered for some of the most atrocious and damaging decisions to impact the economy – Steel Mills privatization, Reko Dik, Rental Power projects, etc. – no less than the disqualification of a prime minister, Yousaf Raza Gilani, on contempt charges. Another CJP, Saquib Nisar, was veritably “a walking shadow, a poor player, that struts and frets his hour upon the stage, and then is heard no more”. He confessed to fancying himself as Baba Rahmata (a fictitious character who abnegated reason and logic) and has left behind a litany of unaccountable, arrogant pronouncements on various subjects that encroached into the policy domain of the executive (like the Dam Fund, taxes on purified bottled water, private school fees, etc.). In particular, he was inclined to favour Imran Khan (regularization of Bani Gala) and his crony Zulfiqar Bukhari (dual nationality) even as he sought to apply the same yardsticks stringently to lesser mortals. A third CJP, Asif Saeed Khosa, betrayed his bias against another prime minister, Nawaz Sharif, when he quoted from the mafia novel, The Godfather, and disqualified him for life from becoming a member of parliament simply because he had not declared an insignificant income (asset?) that had not actually accrued to him!
But times may be changing. Instead of blatantly taking sides between elected political leaders or studiously ignoring the elephant in the room, a couple of judges have stood up to be counted. Justice Qazi Faez Isa of the Supreme Court is bravely contesting Miltablishment attempts to oust him from the SC because he held its functionaries culpable for objectionable political activity during the Faizabad Dharna in 2017 by the Tehreek Labaiq Pakistan. Now he has filed contempt charges against the President, Prime Minister, Law Minister and State Minister of Interior for illegal surveillance of judges. Another judge, Justice Athar Minallah, chief justice of the Islamabad High Court, has bravely ticked off NAB for misusing its powers to harass, intimidate and arrest political opponents of the government. The arbitrary charge of “sedition” on peaceful protestors is also strictly a no-no in his books. A third, Justice Waqar Seth, Chief Justice of the Peshawar High Court, has awarded a death sentence to General (retd) Pervez Musharraf for Article 6 Treason, an unbelievable award considering the “sacred and exalted” office of the army chief. And now the new CJP, Gulzar Sheikh, has ordered that all “illegal” structures and encroachments, including those in Defence Housing Authority, should be razed and the pristine glory of the law restored. DHA, it should be noted, is a sacred cow of state elites. Indeed, some of the CJP’s remarks during hearings of the case are memorable for their brutal frankness: “At the rate the DHA is going, soon it will cross the border into India… or expand into the Indian ocean”; “it is not the business of soldiers to build marriage halls in Cantonments”, etc.). Whether the good CJP will be as good as his threat remains to be seen, but at least the elephant in the room has been duly chastised.
Of the four pillars of a democratic state – parliament, government, media and judiciary – three have bitten the dust. The first two are furiously passing laws and rules to curtail cherished constitutional freedoms in the name of “national security”, the catchall word to browbeat and intimidate. The media can only flex its muscle if the judiciary is able and willing to protect these rights. Indeed, by defending and protecting the media, the judiciary is actually strengthening itself as was evident in the role of the free media in supporting the MRJ.
Surely there are other brave judges in the rosters of the High Courts and Supreme Court who are committed to their oath of protecting the Constitution and the democratic order that should flow from it, as are the various associations of the bar that launched the struggle for MRJ. This is Pakistan’s hour of need. The bar and bench should rise to the occasion like never before.