Justice Athar Minallah’s remarks about Nawaz Sharifs’ survival until the court’s next hearing were not merely controversial but also emblematic of a judiciary, perceived as increasingly entangled in political machinations, and straying from impartiality.
But, perhaps even more striking than his remarks was his action to open the Islamabad High Court (IHC) at midnight on 9 April 2022, coinciding with Chief Justice Umar Ata Bandial’s decision to convene an extraordinary session of the Supreme Court (SCP) at the same time.
The synchronized midnight intervention was made to address a “brewing politico-legal crisis”, during the then Prime Minister Imran Khan’s final hours in office.
It will be recalled that in early 2022, Pakistan was in the midst of a political crisis. The opposition parties, purportedly with the military establishment’s backing, were rallying to dislodge Khan through a vote of no-confidence.
To deflect the mounting pressure and pre-empt the no-confidence vote, Khan dissolved the National Assembly on 3 April, calling for new elections.
The move was challenged by the opposition as an unconstitutional attempt to cling to power. The SCP, on 7 April, declared the dissolution unconstitutional and ordered the no-confidence vote to proceed. The vote was scheduled for 9 April and, as the clock ticked towards midnight, political standoff escalated, leading to increasing uncertainty about whether the vote would be held.
The SCP had explicitly directed that the no-confidence vote must proceed. It was obvious that any delay would be viewed as defiance of this order, constituting contempt of court. It was against this background that the IHC and the SCP took the unusual step of opening at midnight.
The judiciary appeared to be prioritizing political outcomes over procedural fairness, exposing its overreach in politically sensitive cases.
Going by the book, the courts should have waited for the presumed offender to defy their orders. There was, therefore, no need to act pre-emptively on a mere assumption.
But, for some, this decision reinforced belief in the judiciary’s proactive role in safeguarding the Constitution; and, was thus hailed as a “preemptive measure” to guard against any delay or obstruction of the vote, in disregard for the judiciary’s decision.
The controversial decision was justified on the ground that it was essential to protect Pakistan’s democratic framework. Given Khan’s “unconstitutional move to dissolve the National Assembly”, the judiciary’s intervention was deemed necessary to “pre-empt recurrence of similar actions”, to strengthen democratic processes, and prevent potential abuse of executive power.
In short, the novel decision “underscored the judiciary’s role as a constitutional watchdog; … reaffirmed its authority to intervene in cases where it believed constitutional principles were at risk”; and, highlighted its “commitment to upholding the rule of law, even under extraordinary circumstances.”
The decision also reaffirmed the complicit-opressor judiciary’s authority, demonstrating that it would act decisively “to uphold its rulings and prevent even potential violations of constitutional protocol” – by civilians!
However, the surprising decision was generally believed to be a command performance.
The coordinated circus was not just a procedural anomaly. It was seen as a stark departure from established judicial norms; a clear signal of political alignment; unmistakable sign of the judiciary’s capitulation under external influence; and, a big question mark on its impartiality and independence.
Independent observers viewed the “proactive action” as incontrovertible evidence of judicial bias. They argued that such unprecedented measures to ensure Khan’s removal demonstrated lack of judicial neutrality, with some suggesting that the courts were actively working against him.
The “midnight justice” was termed as miscarriage of justice, which demonstrated double standards in Pakistan’s judicial system, as similar urgency was rarely shown for cases, involving ordinary citizens.
Besides, the judiciary appeared to be prioritizing political outcomes over procedural fairness, exposing its overreach in politically sensitive cases.
The extraordinary response to a unique political crisis provided an unenviable precedent for judicial intervention in political crises, empowering it to take sides in political disputes with impunity.
The judiciary’s swift intervention of 9 April 2022 was, indeed, notable for its urgency. However, in sharp contrast thereof, subsequent events in 2023 saw delays, even defiance, in implementation of its directives, under the same CJP, on holding of provincial elections in Punjab and Khyber Pakhtunkhwa (KPK).
The SCP had ordered that these elections be held within 90 days, following dissolution of the respective provincial assemblies. But the Election Commission of Pakistan (ECP) postponed the Punjab elections from 30 April to 8 October 2023, citing security and financial concerns.
The postponement was declared unconstitutional by the SCP. It ordered that the elections be held by 14 May 2023. Again, this was not done within the stipulated timeframe.
The judiciary was thus challenged by the executive and legislative branches of the government, leading to a constitutional crisis. But, alas, guardians of the Constitution didn’t even whimper. No pro-active action, no pre-emptive measure, no contempt of court notice, no midnight justice!
This series of unbelievable events underscores the complicit-oppressor judiciary’s strengths, vulnerabilities and tiered approach to justice, applying separate standards for its benefactors and all the rest.
The judiciary needs a volcanic shake-up. It needs to be reminded of the fate, met by Sisamnes, a judge during the reign of Cambyses II, the Iranian emperor from the Achaemenid dynasty (560 – 522 BC); and, of course, of the Divine Wrath.
(To be continued)
The writer is a former diplomat, based in Canberra and can be reached at [email protected]