Supreme courts around the world experience ups and downs, then times when redemption begins, and usually these also converge with broader changes in the political and social environment. The Supreme Court of the United States of America had, during the last decades of the 19th century and the first decades of the 20th, imposed constitutional segregation and helped reverse the social and political progress that had followed civil war and abolition. of slavery. A process of redemption did not begin until the 1950s when its rulings on civil rights and against discrimination corrected earlier statements and, by laying new ground, reinforced a broader social and economic change that was underway. in the United States with the civil rights movement. In India, we have our own experience of the justice system during the state of emergency, but subsequently the higher judiciary has become the ultimate guarantee of human and constitutional rights.
The judiciary in Pakistan has always had a greater burden of credibility than elsewhere. This is largely for reasons that date back to the early years of the country. Forced to rule on the legality of the bureaucratic erosion of representative bodies and military coups in the 1950s, Pakistan’s Supreme Court resorted to questionable legalities and validated the usurpation of constitutional authority . Another milestone was the execution of Zulfikar Ali Bhutto in 1979, which many Pakistanis today would readily accept as being nothing more than a judicial murder.
Some three decades later, the picture seemed to have changed with a protest led by lawyers and judges against the dismissal of a sitting chief justice in 2007. The dust finally settled with a military dictator expelled. It was felt that the Pakistani justice system may have turned the corner and this was also part of a larger shift in civilian institutions and political parties asserting themselves and framing the future role of the military.
But a decade later, those hopes have been dashed. In 2017, a series of controversial interventions and statements by the Supreme Court of Pakistan ended the tenure of Prime Minister Nawaz Sharif. Whatever his errors of omission and commission may have been, the fact is that his ousting stemmed from friction in the interface his government had with the Pakistani military. The Supreme Court’s interventions have been a setback for Pakistan’s political process in several ways. Two in particular deserve to be remembered. First, the premature end of Nawaz Sharifs’ tenure as prime minister meant that Pakistan’s historic record of not having a single prime minister having completed a full term continued unabated. Second, the perception that the senior judiciary had acted in concert with the military to change the prime minister gained credibility.
This summary, trampling on past problems, is due to their reappearance through the landmark case relating to a Supreme Court judge, Qazi Faez Isa. It is about as close as possible to the original blue blood of Pakistan. His father, one of the first lawyers in Balochistan, was a close associate of MA Jinnah and helped establish the Muslim League in Balochistan. Justice Isa was appointed to the Supreme Court in 2014 and as it stands will become Chief Justice of Pakistan in September 2023 and will remain so for just over a year. 2023 is also an election year in Pakistan as the mandate of the government of the outgoing Prime Minister, Imran Khan, will come to an end.
In 2018, Supreme Court Justice Isa heard an asuo motucase regarding what was called the Faizabad sit-in in November 2017 led by a religious front, Tehreek-e-Labbaik Pakistan, against the government which demanded the resignation of the Minister of Law. The Supreme Court took the case as the 20-day protest severely disrupted the functioning of the capital. Politically, the disruption was another nail in the then government’s coffin, Prime Minister Nawaz Sharif had been kicked out a few months earlier and the protests left him even more besieged and bleeding. Many have speculated, perhaps with some merit, that this was a repeat of what had happened earlier in Pakistan with the military moving to reorganize the political architecture.
The case was heard in 2018 and the judgment handed down by a panel of two judges in February 2019. It was well after the protests and with a new government led by Imran Khan in power. It was in this sense an academic judgment. Nonetheless, the verdict and it was drafted by Judge Isa made critical remarks on the role of intelligence agencies, in particular Inter-Services Intelligence in the Faizabad sit-in. This in itself has given Judge Isa some notoriety on the perennial and controversial issue of the role of the Pakistani military in the wider political system. The judgment, after considering various issues of the right to protest, its reasonable limitations, media coverage of protesters and the government’s handling of these protests, went on to state: The perception that the ISI may be involved in or interferes with matters that an intelligence service should not be concerned with, including politics, has therefore not been set aside. He made other references, including that perceptions of ISI involvement gained ground when sit-in participants received cash donations from men in uniform. One of the conclusions of the judgment was that intelligence agencies should not overstep their respective mandates.
The judgment obviously made the headlines and not just in Pakistan. The ISI protested, as did a whole phalanx of army fronts. A number of petitions for review have been filed, including petitions from the Ministry of Defense and the ISI. More importantly, reports began to circulate soon after the judgment on possible action against corrupt judges, and soon afterwards confirmation came that the government had, in fact, taken action. actions against Judge Isa and two other judges for failing to disclose that they (or, in Judge Isa’s case, their family members) owned foreign property. Meanwhile, Judge Isa also approached the Supreme Court to challenge the reference against him. This case has gone through different phases, but a bench ruling by the Supreme Court at the end of April this year ended all proceedings against the judge. Subsequently, the government’s efforts to have the decision reviewed were rejected.
For many in Pakistan, it has come as a moment of redemption for its higher judiciary. Legalities aside, the final ruling even referred to parallels with 2007 when a full bench of the Supreme Court reinstated the deposed chief justice. It remains to be seen whether the Justice Isa case will finally be closed. It has been a hectic summer in Pakistan, however, when opposition parties, media professionals and judges challenged the prevailing totalizing narratives that the establishment or the military controls everything in Pakistan. The larger context is one of a pandemic and a faltering economy, but a ceasefire on the Line of Control with India that has lasted for more than 100 days adds positive content. These conflicting trends may well suggest that some structural change is underway in Pakistan again, but a single swallow doesn’t make a summer either.
TCA Raghavan is a former High Commissioner to Pakistan and is currently Director General, Indian Council of World Affairs
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