“Until we are not subject to a system, we cannot move forward” — Justice Mansoor Ali Shah

THE old and much-mourned ‘matter’ of how to secure judicial independence has resurfaced — this time, in the wake of an explosive letter that was recently sent to the Supreme Judicial Council (a constitutional body meant for the accountability of the higher judiciary) by six out of the eight judges of the Islamabad High Court. The letter solicits a ‘guidance’ to deal with the meddling in judicial affairs and the harassment of judges by shadowy intelligence agencies. The matter has finally landed in the Supreme Court where various stakeholders, including the petitioners, the bars, and the government, have given various proposals on how to save the judiciary from interference — ‘internal and external’. Will the endeavour bear the desired results for the judiciary?

As part of a whole system, judicial independence cannot be contemplated in isolation. The Constitution envisages a state run by the executive, parliament and judiciary. Each of the three organs of state pivots on its own orbit, but also complements the others, within the larger constitutional framework — they are conjoined in a way where they float or flounder together. The solo flight of an institution has proven to be untenable, if not downright destructive for the troika. In fact, much of the history of our faltering democracy reflects the perfidy of — and the mutual suspicion and discord among — institutional leaderships. Had our early political leadership secured a fledgling democracy with a robust constitutional armour — as did its counterparts in India — a weak and ‘compromised’ judicial leadership would not have allowed the country to suffer the tragedy of ‘Moulvi Tameezuddin Khan’.

Deplorably, history has since witnessed a string of judicial debacles — 1977, 1999, 2009, 2017, 2022. But the historians were also contemporaneously recording their sad commentaries on the failure of mainstream political leaderships to protect their turf — and democracy — against extra-constitutional forces. More recently, a popular and resurgent judiciary, under the then chief justice Iftikhar Chaudhry, again missed a historic opportunity when, instead of securing judicial autonomy and strengthening the democratic dispensation, the court attempted to dominate other organs of the state, unleashing an unsavoury judicial activism that ultimately damaged the judiciary, and weakened democracy. But no lessons were learnt. Some of chief justice Chaudhry’s successors took judicial activism to its extreme. They undermined the trichotomy; gave controversial ‘political’ decisions; dismissed an elected prime minister, and deprived many parliamentarians of their seats, if not liberty.

What is needed is the revival of constitutional democracy in its true form and substance.

No wonder, the insecurities generated by a lax or an absent rule of law are now hitting all — including the judges of the higher and lower judiciary. Still, the ruling political leadership — the ones who had faced the wrath of the judiciary allegedly at the behest of the establishment just before and during the PTI’s government — now seems to be aligning its interests with unelected elements and happily running a ‘hybrid’ system. Thus, the dangerous game of musical chairs continues; the fact that these never-ending institutional ‘wars of attrition’ have undercut democracy and deprived the people of their rights and liberties is disregarded. As a result, recurring political instabilities and economic meltdowns have brought the country to the verge of an implosion. It is, therefore, naive to believe that institutional autonomy can be ensured in a hybrid regime.

We have had a history of constitutional aberrations including the long eras of military dictatorships. We also saw a ‘controlled’ democracy in the 1990s. But even that had constitutional sanction, being forged on the anvil of the Eighth Constitu­ti­onal Amendment that created an (establishment-supported) ‘executive’ president to downgrade parliament. But the existing hybridity has no constitutional basis. It is rooted in its capacity to work the institutional handles on the strength of its vast security and intelligence assets. And yet, it has been widely ‘recognised’ as the ‘new normal’.

So, it is not an administrative lapse or a legal vacuum — as is believed by some members of the bench — which allows shadowy forces to breach judicial fences. The entire system has caved to a de facto order, which mirrors a larger systemic breakdown. Therefore, what is needed is the revival of constitutional democracy in its true form and substance. Only then can judicial/institutional autonomy be secured, and the people’s rights and legitimate expectations, realised. Luckily, that revival is still possible as we, as a body politic, have achieved some promising milestones, notwithstanding democracy’s tragic trajectory.

First, a series of recent constitutional reforms have significantly entrenched the constitutional architecture, giving rise to an increasingly competitive political culture, which is complemented by a large array of democratic jurisprudence. Second, despite political polarisation and tribalisation, a massive new body of political forces largely consisting of the youth is pushing back against undemocratic forces. Third, it is heartening to see the apex court engaging with all stakeholders — the executive, legislature, the bars, and also the public (through the live telecast of proceedings) — to evolve an ‘institutional response’ to those threatening its security and independence. Finally, thanks to these factors, the proponents of the hybrid system are running out of credible narratives, including those cast in the public-interest, ideology, or security mould. No wonder, people are visibly tired of political shenanigans. They want democratic stability and their well-being, which is what the hybrid regime has demonstrably failed to deliver over the years.

But the promise of a conducive environment can be realised only when the leadership (judicial and political) reclaim their respective spaces lost to the establishment. The question is, how is this to be achieved? The judges have historically used their jurisprudential armoury to save the day for democracy. But the burden of redeeming democracy has always fallen on the political leadership. They have turned the wheels of history because they have the wherewithal to effect a radical change — a sense of purpose, training, backing and vision.

Which raises a defining question: will the political leadership honour its calling, or will it prefer once again to resort to myopic interests to ‘revive’ true constitutional democracy?

The writer is a lawyer and an academic.

shahabusto@hotmail.com

Published in Dawn, May 17th, 2024