This Friday, a former Chief Justice of Pakistan (CJP) took oath to head the cabinet, and became this country’s twenty ninth Prime Minister (PM). The role of the Chief Executive in the care taker set-up is negligible under the Constitutions and Elections Act 2017. Primarily, it is the Election Commission of Pakistan’s (ECP) role to conduct the elections “honestly, justly, fairly and in accordance with law”. The only job of the care-taker Government pursuant to Elections Act, 2017 is, to “assist the [Election] Commission”. With not much to add, to a celebrated judicial career, this isn’t a crowning moment. Then why seek or accept political office? Justice Nasir-ul-Mulk will go down as perhaps one of the best judges we had. He was a textualist and would not generally compromise on formalistic and structural doctrinal jurisprudence for substantive or complete justice. Justice Mulk is highly respected for the manner in which he conducted his court. He epitomised “strong without being rough, polite without being weak, awe inspiring in his warnings and faithful to his word, always preserving calmness, balance and complete detachment, for the formation of correct conclusions in all matters…” as laid out in the Code of Conduct for the judges of the Superior Courts. Justice Nasir-ul-Mulk will go down as perhaps one of the best judges we had. He was a textualist and would not generally compromise on formalistic and structural doctrinal jurisprudence for substantive or complete justice. Justice Mulk is highly respected for the manner in which he conducted his court. One cannot recall a single instance when he lost his temper, raised his voice higher than the counsel’s, snubbed or dismissed submissions condescendingly, or threatened to suspend license of the counsel — which has been an increasingly popular trend lately. Even when he was not prepared to entertain a particular spin, he would ever so politely, yet authoritatively, suggest that the counsel move on! He is still remembered by many, even though one can legitimately disagree with his approach or opinions, as an ideal judge — with both the sharp intellect and refined manners. He served as the twenty-second CJP — an honour greater than any position an executive can bestow! But we don’t always act rationally, do we? Justice Mulk, if we remember, headed the Judicial Commission constituted pursuant to General Elections 2013 Inquiry Commission Ordinance, 2015. The Judicial Commission, with the evidence presented before it, criticized the ECP at length. Yet it condoned the ECP’s ‘short comings’, its ‘failings’, ‘irregularities’, ‘lack of planning’ and ‘failure to comply with electoral laws’ that ‘reflect(s) poorly on the ECP planning’. And gave its conclusions ‘notwithstanding the shortcomings of the ECP’, and ‘despite some lapses by the ECP’ — essentially putting an Orwellian spin on things. Apparently some wrongs are bad while others are not! The findings of the Judicial Commission were divisive — placing the judiciary squarely in the political thicket — another rising trend. And having criticized the performance of the Election Commission at length; why associate with it three years on, which descriptively lacks both credibility and capacity as per the findings of Judicial Commission’s report? Despite the new law, the issues of both the capacity and credibility of the Election Commission still remain with another retired judge heading it. Regardless these elections will polarise our society. More so, than any other previous elections, because this time we have a party with a baggage of its chequered past, and is yet contesting the elections for the first time in its political timeline, with a populist narrative of judicial coup — and in all that political malaise we have two retired judges on two ostensibly key positions. Everything seems set up for a confrontation! Judges, post retirement, should not seek or accept any executive responsibilities. Even in the absence of express prohibition, this is a question of principles, conventions, ethics and values Article 213, after the Constitution (Twenty-Second Amendment) Act, 2016, does not make it mandatory that the Chief Election Commissioner be a retired Judge of the SC. A senior civil servant or a technocrat could also be appointed to manage such an important constitutional role. Nor is there any requirement under Article 224 of the Constitution to have a retired judge of the SC as the caretaker PM. With no training in executive duties, appointments of judges in such key roles has not inspired confidence, given the record. The last general elections were also supervised by a retired Chief Justice of Balochistan High Court as the caretaker Prime Minister, and a retired Judge of the Pakistan SC as the Chief Election Commissioner. All but the winner claimed the elections were rigged. A retired judge is not expressly prohibited from accepting political office. The argument of why it should be discouraged goes to the heart of the constitutional principle of separation of powers. Judges, post retirement, should not seek or accept any executive responsibilities. Even in the absence of express prohibition, this is a question of principles, conventions, ethics and values, which a society evolves, setting one good example at a time. It was not unreasonable to expect of a man, with such an impeccable judicial career, to politely decline the office and role in the coordinate branch post retirement — given it can trigger suspicion. And, in this case, both Caesar and his wife should be above suspicion! The writer attended Berkeley and is a Barrister of Lincoln’s Inn Published in Daily Times, June 5th 2018.