The judiciary in a working democracy not only acts independently but also ensures checks and balances on other state organs, including the military.
Unfortunately, however, Pakistan’s judiciary defies this cardinal principle. It has always been vulnerable to arm-twisting. It has traditionally succumbed to a combination of irresistible temptations and ruthless tactics, ranging from covert pressure to overt manipulation and blatant blackmail.
It has invariably validated military takeovers and bestowed legitimacy on usurpers, who trashed the Constitution. It has connived at or acquiesced to military dictators, whenever they trampled human rights.
Even during civilian rules, it has allowed the military to influence judicial decisions, especially in cases involving security, national policy, or influential political figures.
In other words, Pakistan’s military has historically wielded immense power, and been perceived as an overarching force that can influence, even override, civilian institutions, including the judiciary.
The IHC judges’ decision to document pressures was a rare heroic act of defiance.
One of the most eloquent testimonies to this effect was provided by a letter, dated 25 March 2024, addressed by six out of seven judges of the Islamabad High Court (IHC) to the Supreme Judicial Council, with copies to all judges and Registrar of the Supreme Court.
The letter alleged manipulation and intimidation by intelligence agencies in judicial proceedings.
The letter detailed seven instances of pressure on judges, including abduction and torture of their relatives and secret surveillance within their bedrooms, to sway their rulings.
The six judges questioned and sought advice on the existence of an undeclared state policy, aimed at intimidating and coercing the judiciary. They called for immediate action to safeguard judicial independence.
Chief Justice Qazi Faez Isa convened a full court session on 27 March to investigate the allegations.
Justices Syed Mansoor Ali Shah and Jamal Khan Mandokhail remarked that the complaint demanded an “institutional response” to ensure that “interference stops here and does not happen in the future.”
Ironically, however, instead of standing up for the independence of judiciary, Isa passed on the buck to the government, asking it to form an inquiry commission, which was done, with former Chief Justice Tassaduq Hussain Jilani as its head.
Isa took the preposterous plea that he would take action only upon receiving a complaint from a judge, adding that “since I became the Chief Justice, no complaint has come from anyone and hence [I am] unable to adjudicate [on] that matter.”
Jilani declined the offer, the Supreme Court initiated suo moto proceedings, and other High Courts also confirmed interference by security agencies.
Nonetheless, Isa did not endorse the six judges’ stance and the case went to cold storage.
Meanwhile, many judges, like Lahore High Court Chief Justice Malik Shahzad Ahmad Khan, were subjected to a malicious campaign, because Isa’s court had failed to stand up.
The letter substantiated the long-suspected belief, based till then on circumstantial evidence, in the encroachment into the judicial domain.
The IHC judges’ decision to document pressures was a rare heroic act of defiance, underscoring their struggle to maintain independence, unabashedly undone by Isa.
Hence, Justice Syed Mansoor Ali Shah’s candid remarks that Isa, “an ostrich, with his head in the sand, remained complacent and indifferent to external influences and pressures on the judiciary…. Instead of standing as a bulwark against interference, he opened the gates wide, betraying the judiciary’s sacred role as a check and balance on power. He showed neither the courage nor the moral fortitude to defend the judiciary. Rather [he] ceded ground to those who sought to weaken the courts for their own gain, thereby compromising the very foundation of the rule of law.”
However, Isa was no exception. He was just the norm. Amongst others, Chief Justice Umar Ata Bandial is also known for undercutting the judiciary’s role as an independent institution.
After the May 9 (2023) incident, the military decided to try Pakistan Tehrik-e-Insaf (PTI) workers in military courts under the Pakistan Army Act.
This decision was met with legal challenges, with petitioners arguing that such trials violated constitutional rights and the principle of fair trial.
In October 2023, a five-judge bench of the Supreme Court, led by Justice Ijazul Hassan, ruled with a 4-1 majority that such trials violated constitutional rights, emphasizing that civilians were entitled to fair trials in civilian courts. Accordingly, it declared trials of 103 civilians in military courts as unconstitutional and null and void.
The civilian government filed a review petition, challenging the civilian victory.
But, Bandial did not constitute a review bench, dumping the petition into the cold storage sine die. This was read as passive support for the military, allowing it to determine the time-line.
The military had the last laugh on 13 December 2024. A seven-member constitutional bench of the Supreme Court, led by Justice Aminuddin Khan, conditionally allowed military courts to prosecute 85 civilians, who were still in the limbo for their alleged involvement in the 9th May incident.
Ironically, Justice Khan was neither the first, nor will he be the last, to ‘decorate’ his wig with such a dubious ‘laurel’. He merely followed in the footsteps of ‘illustrious’ CJPs like Isa and Bandial, who not only abandoned the six IHC judges and humiliated the judiciary as a whole but also betrayed the entire civilian population of Pakistan, emboldening their successors to uphold Pakistan judiciary’s ‘glorious legacy’.
The military courts wasted no time in sentencing all the accused to between 2 and 10-year imprisonment, prompting PTI to go in for intra-court review petitions, challenging the very legality of the process.
The matter is sub judice. Fingers crossed!
(To be continued)
The writer is a former diplomat, based in Canberra, and can be reached at khizar_niazi@ hotmail.com