‘SATURDAY Night Massacre’ is a well-understood phrase in US political and judicial history. It refers to a Saturday when, at the height of the Watergate crisis, the then president Richard Nixon sacked independent special prosecutor Archibald Cox perceived as hostile to Nixon. This was followed by the acceptance of the resignations of the attorney general and the deputy attorney general of the US. We had the same unsavoury flavour late night Saturday, Jan 13, 2024, when the Qazi Faez Isa-led Supreme Court of Pakistan issued an order that deprived the PTI of its election symbol of the bat.

Nixon’s actions were clearly existential in an attempt to forestall his removal. Qazi Faez Isa had also been subjected to a gruelling existential fight against the now-established mala fides of the former prime minister Imran Khan and Pre­si­dent Arif Alvi in their inspired reference to the Supreme Judicial Council (SJC) for the removal of Qazi Faez Isa as a judge of the Supreme Court.

With such painful and recent memories including the public humiliation of Mrs Sarina Isa, it seemed an honourable option for Chief Justice Isa to recuse himself in a case involving, basically, the survival of Imran Khan. Transparency, good governance and conflict of interest considerations are best left to the individual decisions of a judge but where tensions, acrimony, and feuds have long played out in full public view, there is an additional responsibility to make an allowance for public perceptions, however misguided they may be.

The right to a ‘fair trial’ guaranteed under Article 10-A of the Constitution requires hearing/ adjudication by an impartial and unbiased judge and if there is a reasonable perception/ likelihood of bias against a judge, he should recuse himself. The superior courts of Pakistan and other national jurisdictions have held that even if a judge is impartial, if right-minded persons would think that, in the circumstances, there is a likelihood of bias on the part of the judge, then he should recuse himself. This facilitates confidence in the court as a prerequisite for the dispensation of justice, and is pivotal for creating public trust in the judiciary.

Good governance, transparency and avoiding a conflict of interest required recusal.

This pattern of justice was also deducible from the ruthless and dedicated hounding of the PTI by the Election Commission of Pakistan. The ECP was the regular target of candidate Imran Khan during the long campaign leading to the 2018 general elections. How brutally Imran Khan attacked the members of the ECP can be retrieved from recent memory. His no-holds barred language to persistently accuse the then chief election commissioner (CEC) left us all wondering about how this vulgarity would affect the future of political conversation in Pakistan.

The Qazi Faez Isa court could not find any basis of the allegation of PTI against the mala fides of the CEC and ECP. Maybe, video records of Imran Khan’s election jalsas could have refreshed recent memory although it is unlikely that allegations so abusive and as recent as just a few years ago would have faded from any human memory, particularly of the razor-sharp minds of the Supreme Court bench.

We could also join the national chorus of disappointment in the requirement of justice as not only being done but seen to be done. We could add the compelling overarching importance of the fundamental right of association (and political representation) provided in Article 17 of the Constitution, and reinforced by a robust jurisprudence of the Supreme Court and the other superior courts, all poised against disenfranchising the people of Pakistan. Reference could also be made to the well-known doctrine of indoor management in corporate governance.

These should have overwhelmed the technicalities pointed out by the Supreme Court and that had not been followed by the PTI. We all know how the Indian supreme court rose to the challenges of Indira Gandhi’s majoritarian rule in India by erecting the Basic Structure doctrine to meet her growing authoritarianism. It could have been our blessing, as a nation, if our Supreme Court had reacted to the present challenges with vision and innovative legal craftsmanship, instead of taking the pedestrian route of felling the bat as an election symbol of PTI on technical nuts and bolts when a more creative architecture of judicial reasoning was the need and hope of the nation.

The enormity of the national challenge before the Supreme Court, instead, dwarfed the Supreme Court bench. The ECP, bruised by the campaign vilification of Imran Khan — and who can forget his recent threat to try all the members of the Commission for treason under Article 6 on re-election as prime minister — did not, institutionally, forget the irreparable harm done to its standing as a national institution. It could not overcome the felicitous fact that the present CEC was an appointee of the Imran Khan government. And, Qazi Faez Isa, did not apparently, and at least in public perception, forget his hurt of the reference against him to the SJC. Time-honoured values of good governance, transparency and avoiding a conflict of interest required recusal, for the national good. And, Imran Khan has, reportedly, in his reaction to the order, relied on a Quranic verse against hatred in dispensing justice.

India has had the tall-statured leadership of chief justices and justices of its supreme court, which have inspired that nation and its people when they, in their finest hour, well met the constitutional challenges in India. It was India’s good fortune that chief justices Subha Rao and P.N. Bhagwati, and justice Krishna Iyer of the Indian supreme court, ingeniously steered their country, even through troubled times, to its rightful democratic destiny. And, it was clearly the time for Pakistan’s A.R. Cornelius, Hamood-ur-Rahman and Ajmal Mian. The country misses their leadership today. The history of democracy in Pakistan may perhaps have been differently — and better — written by them on the fateful Saturday night this month.

Parvez Hassan is a senior advocate of the Supreme Court of Pakistan.

Asad Ahmad Ghani is an advocate of the high court.

Published in Dawn, January 23rd, 2024