Dismantling democracy: A hybrid guide for the judiciary

The past year is filled with incidents of judicial orders being flouted, judicial domains being encroached upon, and a general apathy towards what even the highest court in the land had to say about the law.
Published February 1, 2024

Near the end of last year, the editor of Prism asked me whether I would be interested in writing a review of the year’s major decisions given by the Pakistani judiciary. I consented, yet have since been unable to write the promised article for which he had supplied me with a meticulously complied timeline of dates and decisions along with articles accompanying them. I did have a clear idea that any article that covers the year past or the one ahead must focus on three elements — our judiciary and what it’s been up to, the establishment and its perceived influence, and the politicians and their complicity or suffering.

You want a year in a nutshell? We are engineering for a new government to be run by the same family we engineered to replace last time, while the state is currently busy prosecuting its last hero and his spouse for adultery on the witness statement of the servant of the spouse’s former spouse.

Meanwhile, the Supreme Court is having JIT police its respect — formed at the behest of the bar council — which has issued notices to journalists to answer for their commentary. We are all told to be careful about our speech, while our liberty after speech currently hinges upon an undertaking offered by the attorney-general in court which allows for fair criticism. The decision of fairness of the critique can obviously be taken by the JIT’s members because no one has challenged that yet in original jurisdiction and the court feels itself bound by procedure at this point. Chief Justice Qazi Faez Isa has, meanwhile, wondered aloud while hearing the case what the big deal is when you’re summoned to answer for yourself by the FIA — and has reminded journalists that they have been flogged and whipped in public in the past.

Gloom and doom

If you visit the Supreme Court, a pall of uncertainty hangs over all the staff and officers, who shake their heads when you ask them about how the feel of the place is these days. A senior judge has spoken about press freedom at a conference which doesn’t square with the view espoused by the CJP-led bench hearing journalist freedom cases. Separately, two senior judges have led benches that have given election-related decisions where the commentary clearly holds the right of the people to choose supreme, no matter the technical lacunae — a position that is divergent from the one taken by the CJP-led bench which found technical peace in letting the ECP rip the PTI to pieces.

On the criminal law front, hot off the press are two decisions related to former prime minister Imran Khan. In the Official Secrets Act case, he is accused of losing a cipher document which carries a sentence of two years, only if your actions led to a government cipher code being compromised. But because this wasn’t enough, he has instead been sentenced to 10 years — for reasons yet to be afforded, but which would have to explain to us all how he wilfully colluded with the enemy to reveal Pakistan’s state secrets.

The second decision is regarding Imran Khan and Bushra Bibi’s abuse of the Toshakhana allowances in a manner which differs only in degrees from the admitted abuse of the Toshakhana by every premier who has come before him. But because it’s Imran and because something needed to be done quickly, he has been sentenced to 14 years in prison along with his wife, with almost a Rs1 billion fine for good measure.

The year past

If one goes into detail, the past year was also filled with incidents of judicial orders being flouted, judicial domains being encroached upon, and a general apathy towards what even the highest court in the land had to say about the law.

We had disappeared journalists not being produced despite court orders, elections not being held despite orders by an ECP feigning incapacity to the Supreme Court and a constant merry-go-round of criminal cases and detention orders issued with a deliberate pattern to deprive a political party’s and leaders supporters of their liberty — a pattern invisible to everyone except a couple of judges who were promptly ignored by their own brethren.

Every time I would try to bring my thoughts together to write this article, something major would change. Enough to make me want to sit back and think it out all over again.

There was an order mandating elections on February 8, which calmed a lot of uncertainty. Attempts to obstruct such an order were brushed away by the superior court. There was hope yet for the rule of law I gathered, and started to write.

The ZAB proceedings

We saw the proceedings on the presidential reference with regard to the judicial murder of Zulfikar Ali Bhutto. And for all the hours of arguing, I never could understand how there was a legal question to be answered by the court and how anyone would get over the question put forward by Justice Mansoor Ali Shah inside the first hour of proceedings: how are we to sit in appeal of a decision that has attained finality, and how can we undo the precedent value of something even in principle in reference jurisdiction?

Justice Shah followed up by saying how the judicial error in the ZAB case would best be undone: by another case where the ZAB error had been followed by a court had come up before the SC which formed a larger bench to undo it. And yet when the bench was informed that there is no such case where the ZAB error has ever reoccurred, the court was still unwilling to see how this was simple political grandstanding and little else beyond an academic debate.

The strangeness of the ZAB proceedings lingered on into the contempt hearings against the ECP by the PTI, where they had asked for a level playing field in the upcoming elections. The Supreme Court couldn’t see a pattern or any evidence of harassment that the PTI was suffering in particular. It needed proof. This bench was headed by CJP Justice Qazi Faez Isa, who himself had been hounded over his family’s assets and alleged mis-declarations. This campaign at the time was abetted by his brother judges claiming not to see any pattern in the way his case was being set up, and how they needed proof to believe him.

The strangeness continues

The strangeness continued when Justice Ijazul Ahsan resigned shortly after Justice Naqvi. The latter’s resignation was expected, and his only defence came from his family members on social media. But Justice Ahsan didn’t even give anyone an opportunity to defend him — almost as if what he had to hide scared him so much, he didn’t even care to put up a fight for the highest judicial office that was to be his in 10 months.

This strangeness culminated in the PTI’s denial of election symbol proceedings. The only credit that can be sent the CJP’s way with regard to these proceedings is that it was in part due to his efforts that everyone was able to access them live. Here too, the Supreme Court couldn’t see any patterns in the state’s particular behaviour against the PTI, even when its chairman was present in court and stated that his home had been raided — a raid which the police confirmed had taken place. The court got back to its own business, which was helping the ECP ensure democracy within political parties by making the parties abide by their own constitutions.

This occurred after the ECP had been unable to abide by the Constitution of Pakistan as per a Supreme Court order only some months ago and failed to hold elections within the stipulated time — a failure which this Supreme Court was able to overlook, perhaps because of the much more important and good work being done by the ECP now.

The ECP’s delay tactics

Pakistanis are used to state authorities conforming to the letter of the law rather than its spirit. In more established legal systems, where your word ought to be worth something, and which operate outside of the realm of Shakespeare, this is an actionable ground against the state. It is known as malicious compliance.

So while on the one hand, we had court orders being disregarded, on the other, we had particular court orders that suit regime interests being complied with in uncommon haste. Orders by larger Supreme Court benches commanding elections were ignored. Meanwhile, orders by single benches in Lahore such as the one suspending RO trainings were implemented with lightning speed.

In the RO order, the ECP, within six hours, had cancelled trainings and said they could no longer hold to the electoral timeline committed to the Supreme Court. They had not even bothered to appeal the case to the SC until directed to.

Meanwhile, in the bat symbol order, where the PHC concluded that the ECP couldn’t look into the quality of an intra-party election, the ECP made sure that not only was the appeal filed urgently, but that it hired the finest (and one of the most expensive) legal mind in Pakistan to represent their case. This despite having lawyers on their payroll — a practice which judges such as CJP Isa have deprecated multiple times in the past as a waste of public funds.

It used to be that the lower judiciary wasn’t taken very seriously. Even by lawyers, any order of the district courts would really not be given weight until the high court had had a say in it. Then the high court stopped being listened to. You didn’t really deserve something from the state until the Supreme Court had taken a look. Then the machinations of Nisar, Gulzar and Bandial ensured that the Supreme Court isn’t really the final arbiter of justice. That authority now belongs elsewhere.

Of bullies and their sidekicks

We have lawyers today clapping along in awe of power. Even our once proud bar associations stand complicit and compromised — seeking salvation by referring to their bravado in the recent past.

There are always some who look at the bully with awe as he lifts up his victim’s bicycle before throwing it away or as he lands his first punch on an innocent body. Such power. Such terror. There are also those who find safety in becoming friends with the bully. Mutual interests also ensure that the bully’s muscles comes in handy. Who wouldn’t want to be able to block an entire thoroughfare when holding a celebration, or to be photographed touring the world on state expense.

No person ever felt comfortable in a pocket, wrote Brandon Sanderson, author of epic fantasy fiction. You can’t blame Mr Sanderson for being ignorant of contemporary Pakistani history.

But what happens when the children stop coming out to play? Or if they get together and decide enough is enough? But then when they do get together, what do they do? Tell their parents? Pray to God? Sign a charter?

“Will you let them go if we decide against you?” Justice Hassan Azhar Rizvi asked the attorney-general about the civilians held pending trial in military courts — trials, mind you, which had been declared unconstitutional by a five-member bench.

A Supreme Court judge had just posed his institution’s legal authority and legitimacy as a question. “Yes of course we will, if this court decides so,” the attorney-general replied, looking surprised at the question. So then the larger bench suspended the earlier SC verdict and the appeal hasn’t been heard on merits since.

Header image created with AI