POST-DICTATORIAL societies are often characterised by nascent political institutions. The judiciary in these states, therefore, often positions itself as an alternative to the political government. The public too views the courts as a bulwark against corruption and their saviour against the executive’s excesses.

With Pakistan returning to a democratic dispensation in 2008, the country too has seen a contemporaneous increase in the import of the judiciary particularly after the restoration of the judges deposed by the Musharraf regime. Given the primacy of the judiciary in our polity, it is imperative to critically evaluate the performance of the apex court under Chief Justice Gulzar Ahmed as the latter prepares to doff his judicial robes. How has the court fared under the leadership of the present CJ with respect to the administration of justice, safeguarding fundamental rights, and preserving the court’s own independence?

Administration of justice: In a recent survey conducted by Gallup under the World Justice Project, Pakistan ranked at 118 out of 128 countries in terms of civil justice. Delays and pendencies continued to afflict the administration of justice during Justice Ahmed’s tenure, with pendencies before the Supreme Court reaching a staggering 51,000. Nonetheless, in stark juxtaposition to his predecessor who had underscored the need to use technology and innovation in addressing delays, Justice Ahmed remained focused on other, seemingly more pressing matters. Resultantly, instead of removing obstacles in the path of expeditious and inexpensive justice, he appeared to devote more time to removing people from their homes under the court’s encroachment drive.

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Writing for these pages, architect Arif Hasan had written that “no demolition of a building which serves a social purpose, or demolition that makes people homeless, jobless or increases poverty should be carried out’. Nonetheless the alacrity with which the court proceeded against encroachments despite the magnanimity it had shown while regularising housing societies sprawling across acres in the past dashed the hopes of those who saw the apex court as their last resort.

How has the court fared under the present CJ?

Safeguarding fundamental rights: CJ Ahmed’s tenure also coincided with rising authoritarianism and crippling polarisation. Even as judges, journalists and members of the opposition were targeted in an attempt to stifle dissent, the court continued to abdicate its responsibility to safeguard fundamental rights and dispense justice without fear or favour, affection or ill will. Such abdication specially as two reporters covering the Supreme Court were attacked in and abducted from the capital undermines the public’s confidence in the court as a custodian of the Constitution.

Preserving the court’s independence: Most crippling perhaps were the pressures on the court’s independence as allegations of the government’s attempt to subjugate the judiciary received more traction. References against judges, tensions between the bar and the bench on the issue of elevation to the Supreme Court, and the court’s subsequent recalcitrance with respect to demands of greater transparency imperilled the court’s prestige. Secondly, the CJ’s power to constitute benches and allocate cases too remained unstructured. In an opinion rendered in 2019, Justice Mansoor Ali Shah had said that “Any effort to muffle disagreement or to silence dissent to dampen an alternate viewpoint of a member of the bench would shake the functions of a free and impartial justice system, thereby, eroding the confidence on which the entire edifice of judicature stands.”

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Nonetheless, the exclusion of senior judges including Justices Isa and Baqar from benches hearing sensitive cases resulted in murmurs about the said exclusion being on account of their views on accountability and the rule of law. Unbridled and unstructured discretion as regards the constitution of benches, therefore, created a perception that certain judges are excluded from hearing politically consequential cases given the independence of their views. It is perhaps this perception that compelled some journalists to withdraw an application for the protection of journalists after the bench hearing their case was abruptly reconstituted. Notwithstanding the merit of these allegations, the gravity of this perception and its effect on the court’s prestige can hardly be overstated.

As Justice Bandial prepares to take oath as the next CJ, he faces unprecedented challenges given recent tensions over judicial appointments, references against judges of the superior judiciary, and frequent delays afflicting the administration of justice. Will Justice Bandial, who is otherwise known for his patience and polite disposition, be able to navigate through these treacherous waters? To borrow from Marx “men make their own history, but not of their own free will; not under circumstances they themselves have chosen”.

The writer is a lawyer.

Published in Dawn, January 30th, 2022