Pakistan: Why Judicial Impasse Again? Does Pakistan Need A New Social Contract? – OpEd

After a short pause, Pakistan is going through another judicial crisis when a letter from six judges of Islamabad High Court surfaced in the country’s media about interference in judicial processes threats, and intimidation by the country’s intelligence agencies in political cases pending in the court followed by suspicious letters sent to the judges of superior judiciary in the country.

Why such judicial impasse and who is responsible?

It is neither the first nor will be the last time that the country faces such judicial challenges because of our bleak judicial history started from the controversial 1954 judgment of Pakistani Chief Justice Muhammad Munir who validated the extra-constitutional use of emergency powers by Governor General Ghulam Muhammad and infamous introduction of the “doctrine of necessity”, whose sole purpose was the political engineering by the higher judiciary through the judicial process on the behest of mighty establishment followed by CJP Cornelius, who legitimized Ayub’s martial law in the Dosso case (1958), served as CJP under Ayub for eight years, and then served Gen Yahya as law minister.

The judicial murder of ZA Bhutto during Zia Martial law- admitted by Justice Naseem Hassan Shah after retirement was endorsed by the recent judgment of the Supreme Court of Pakistan led by sitting CJP Qazi Faiz Esa. The re-incarnation of the Doctrine of Necessity in the Nusrat Bhutto case justified the martial law of General Zia. The validation of Musharraf’s coup in 1999 by the Supreme Court of Pakistan led by Chief Justice Saeed-u-Zaman Siddiqui. The infamous Supreme Court order validating the proclamation of emergency of 3rd Nov 2007, PCO 2007, and oath of the judges written by Chief Justice Abdul Hameed Dogar commonly known as Dogar courts. The audio call leak of Justice Abdul Qayyum of Lahore High Court. The highly controversial role of judge of the Supreme Court late Muhammad Rafiq Tarer who was awarded and became President by Nawaz Sharif. The eight years of tumultuous but biased role in the case of his son of Iftikhar Muhammad Chaudhry as Pakistan’s Chief Justice. The scandalous role of Chief Justice Saqib Nisar commonly known as Baba Dam are some of the instances to be quoted with regard to our judicial degradations, political engineering through judiciary and the role of establishment in the whole judicial quagmire.

The perfect storm in the superior judiciary occurred when the former Chief Justice Umar Ata Bandial showed reluctance to constitute a full court despite repeated calls from the legal fraternity and intelligentsia, he included only like-minded judges in the larger or special benches. He was referring sensitive matters to his like-minded judges because he tilted to a certain political party backed by the elements in the establishment at that time in a few instances of their unconstitutional role during their tenure.

Governments’ negative role in the judicial system.

On  the other hand, successive governments have always played and the present government is playing a key role in fueling the division between the judiciary and lawyers through various means to meet their nefarious political designs and personal gain. Resultantly, this judicial impasse and lawyerisation’ of the chaos has added fuel to the judicial fire.

If this dangerous storm created by the establishment both civil and military of the Country’s higher judicial system — created through fear, interference, intimidation, conspiratorial theories, and toxicity — is not stopped- the nation will face a very dangerous situation shortly. In this regard, F.S Ijazuddin has rightly said that Pakistan is a judicial jungle, thick with laws, and inhabited by lawyers and judges. Justice lies hidden somewhere in the undergrowth.

The rot is multi layered judicial coupled with political, economic,social and is much deeper than it seems. What the six judges of the Islamabad High Court have penned is just the tip of the iceberg in our judicial mess. On the other hand, instead of the judiciary, the footprints of the deep state loom larger over the entire system, particularly witnessed in the recent elections and aftermath.

Indeed, the past and recent alleged intervention in the judicial processes shows the increasing unabated role of the security establishment in the country’s whole power structure. It goes beyond hybrid rule, as the democratic space diminishes due to highly corrupt and compromised, selfish, family-centric political leadership. Consequently, the shadow of the security establishment hovers across the entire political, economic, social, and judicial spectrum in the country.

Furthermore, the Worsening political polarization- PTI versus PPP and PML-N including Nationalist political parties and JUI planning to launch anti-government campaigns has strengthened the stranglehold of unelected forces. Though the IHC judges have challenged illegal actions, they will give no results unless they are supported by those fighting for democracy and the rule of law (politicians + legal community).

How and why superior judiciary is ineffective and controversial?

This third pillar of state, “judiciary”, is badly divided on political grounds tilting dangerously, its foundations are eroded by the other two — the legislature and the executive since the beginning because of their flawed induction system in higher judiciary based on political like and dislike- involvement of the establishment in recruitment coupled with Bar politics instead of merit. 

The judges are not inducted to the top court based on merit as nepotism, favoritism, and the sacrifice of merit are factored mostly.

The independent judiciary plays an important role in society’s development, well-being, and welfare, the judiciary becomes impartial strengthened, and independent if it functions according to the Constitution. A judge could be strong and committed if he or she has a vision, conviction, and knowledge that would never come under any influence. Unfortunately, the judges of the superior judiciary have become compromised, vulnerable, and exposed to the dictation by their predators due to their flawed induction system, and therefore, they have been diagnosed with a more dangerous malaise — a crisis of confidence in themselves. They have proved this in the recent case.

Some questions come to mind, first , why those six judges remained silent and boycotted their fellow judge of the Islamabad High Court, Justice Sadiqi when he labeled such allegations of alleged involvement of the intelligence agencies in the court proceedings. Second, despite having legal authority, why they failed to take legal action against those elements who are forcing them for judicial favours. Third, the judges are duty bond under their oath to dispense justice with out fear and favour. In the instant case aren’t they violating their oath. Instead of acting against the intruders in the judicial process, intimidation, and threats to them, they have simply shifted the burden from themselves and brought the matter first to the notice of the Chief Justice Islamabad High Court and later on to the notice of the SJC. It showed that They have utterly failed to honor their oath.

Furthermore, the judges of the higher judiciary have always turned on one another in a feeding frenzy (aggressive manner) that in a less civilized society would be akin to cannibalism (the practice of eating the flesh of one’s species). They forget the words of the Argentinian novelist Augustina Bazterrica: “Today I’m the butcher; tomorrow I might be the cattle.” Nepotism, favouritism, polarisation, political affiliation and killing of merit are the order of the day in judicial processes and in their judgments. Such an approach has created space for undemocratic forces to interfere and manipulate the judicial system. There should be no doubt that this contradiction and conflict between the two will continue. And as long it continues, this country and its people will live in chaos and violence. 

How to heal the judicial wounds?

The judicial impasse or judicial civil war-like situation in the country will not end with the departure of the CJP in the Supreme or High Court Islamabad or the constitution of a commission, the hearing of the case by affixed or full Court. the toxicity of this judicial chaos will continue to rage for long after that until and unless a new social contract or rewriting the constitution based on the findings of a truth and reconciliation commission. The proposed TRC should be constituted to reimagine the whole spectrum of our history, identity, ideology, political social economic security and other challenges facing the nation particularly restructuring the country’s governance system.

The proposed TRC should be inclusive consisting of all stakeholders tasked and empowered to uncover inconvenient truths and contradict long-standing mistakes committed by all stakeholders both civil and military including false beliefs and prevailing wrong and fabricated narratives. The TRC would have the mandate to investigate the historical injustices done by the political and military governments and military interventions direct or indirect, abuse of power by both civil and military, cycle of tainted elections since beginning particularly after 1970 elections till the recent highly controversial one and plundering of national exchequer and resources by powerful in the corridor of power.

By confronting the illogical, exploitative, fabricated and non productive past with honesty, inclusiveness,empathy Pakistan can heal deep-seated wounds and move forward to a future built on mutual respect understanding shared values interests, and opportunities. 

It is high time for Pakistan’s ruling elites both civil and military leadership to heal the deep-seated wounds inflicted by the powerful elites upon the public. Enough is enough, the only way to move toward a better future is political healing rather than security tolls otherwise the country risks deepening political economic social judicial and environmental fault lines and spilling more external-internal conflicts and divide.