Dr. Ikramul Haq
The judiciary that once brought a dictator to his knees has surrendered without a fight. The court that once drew millions into the streets in defence of the rule of law has become an institution the public barely recognises. And the amendment that has rewritten its constitutional identity was not imposed suddenly. It was invited through years of hubris, infighting and judicial adventurism that steadily eroded its own legitimacy—The fall of the House of Justice, Syed Jalal Hussain, The Express Tribune
Before the coup d’état by General Pervez Musharraf on October 12, 1999, judiciary in Pakistan repeatedly showed resilience by striking down excessive and abusive exercise of powers by dictators against democratic institutions. The Supreme Court, particularly, played its role in curtailment of arbitrary exercise of powers under the emergency provisions of the Constitution of Islamic Republic of Pakistan [“the Constitution”] and protection of fundamental rights of citizens during military rules.
The defiance and resilience of Supreme Court surfaced in many cases, including but not restricted to the following:
Sabir Shah v Federation of Pakistan [PLD 1994 SC 738]; Mohammad Nawaz Sharif v Federation of Pakistan [PLD 1993 SC 473]; Federation of Pakistan v Aftab Ahmad Sherpao [PLD 1992 SC 723]; Ahmad Tariq Rahim v Federation of Pakistan [PLD 1992 SC 646]; Hakim Khan v Government of Pakistan [PLD 1992 SC 595]; Federation of Pakistan v Mohammad Saifullah Khan [PLD 1989 SC 166] and Benazir Bhutto v Federation of Pakistan [PLD 1988 SC 416].
The effectiveness of people’s street power that reigned from March 9, 2007 to July 20, 2007, from November 3, 2007 to March 16, 2009—culminated in the second restitution of Iftikhar Muhammad Chaudhry as the Chief Justice of Pakistan (CJP) on March 22, 2009. Symbolically, a new Pakistan emerged on March 16, 2009, but finally the judiciary as a vital democratic institution lost its battle against men in khaki on October 21, 2024 with Constitution (Twenty-sixth Amendment) Act, 2024 [26th Amendment] and on November 13, 2025 through Constitution (Twenty-seventh Amendment) Act, 2025 [27th Amendment] becoming the final nail in the coffin.
In the aftermath of episodes leading to March 16, 2009, the nation was genuinely enthusiastic about independence of judiciary and effective dispensation of justice. All were expecting establishment of representative democracy and effective accountability, but instead, they witnessed mounting tension between different organs of the State.
Administration and dispensation of justice in Pakistan and establishment of bona fide democratic system till today remain a distant dream. In the wake of decisions, Chief Justice of Pakistan Mr. Iftikhar Muhammad Chaudhry v President of Pakistan [PLD 2010 SC 61] and Dr. Mobashir Hassan & Others v Federation of Pakistan & Others [PLD 2010 SC 1], some hope for rule of law, social justice and economic equality did temporarily emerge, but was ruthlessly throttled by the de facto rulers and those heading the judiciary.
It is an undeniable fact that in the post-March 16, 2009 scenario, the judiciary under Chief Justice Iftikhar Muhammad Chaudhry and all the CJPs thereafter disappointed the people by failing to deliver as no reform agenda was implemented to remove snags in dispensation of justice in a system that remained hopelessly redundant, painfully unproductive and marred with inefficiency and inordinate delays.
In post-March 16, 2009 scenario, the onus was on the Parliament to undo all the actions taken by General Musharraf on November 3, 2007 as well as removing all distortions made in the Constitution of Pakistan since 1973. However, the Parliament once again failed to do so and ultimately the Supreme Court intervened and jolted the elected representatives.
Through 18th and 19th Constitutional Amendments, the Parliament did make an effort to reassert itself but not much was done to make judiciary truly independent, capable of delivering justice without delays, and imposing costs on the litigants, especially the governments, for filing frivolous appeals.
In the wake of March 16, 2009, the erstwhile Supreme Court of Pakistan passed many notable judgements, especially the verdict in Asghar Khan’s case [Human rights case No. 19 of 1996 decided in 2012—reported as 2012 SCMR 2008], atoning its past, but regrettably, this decision remains unimplemented till today. Open defiance of this order and many others testify to the fact that after exit of General Pervez Musharraf as President in August 2008, all civilian governments though claiming to be championing the cause of democracy have actually been obeying the real masters.
From 2009 to 2023, the Supreme Court decided many suo muto cases under erstwhile Article 184(3) of the Constitution including that of elections to be held in Punjab and Khyber Pakhtunkhwa in 90 days that was openly defied. There has always been severe criticism from many quarters, especially those in power, that judiciary has been “transgressing its constitutionally defined limits”.
In Panama case, this was the main thrust of all the three lawyers who represented the three-times elected prime minister, his family and close relative, the finance minister, dubbed as de facto premier, now deputy prime minister as well as foreign minister.
The main reason behind these moves was unabated tug of war in Supreme Court related to constitution of benches and selection of cases of public importance (sic). It bewildered and baffled almost every citizen of Pakistan. Common people could not expect such a vivid division among learned men in robes. Such a divide was least expected from judges who deviated their path from those who once endorsed General Pervez Musharraf’s rule, going to the extent of giving him even the right to amend the Constitution.
On September 17, 2023, many thought that oath as 29th Chief Justice of Pakistan (CJP) by Justice Qazi Faez Isa marked a noteworthy shift in the country’s top judiciary. However, it proved to be yet another delusion like myth of “independence of judiciary” on restitution of judges on March 16, 2009 and then legacy of CJP Chaudhry Muhammad Iftikhar.
Justice Qazi Faez Isa’s predecessors, including, Mian Saqib Nisar, Asif Saeed Khosa,, Gulzar Ahmed, and Umar Ata Bandial, elicited widespread criticism for what many alleged “misplaced judicial activism” coupled with controversial decisions and subjective interpretations of the Constitution—proving detrimental and negatively impacting judiciary’s image. Accusations of collaboration with the military establishment and decisions aligned with political agendas made their legacies questionable, even that of Justice Faez Isa, who retired on October 25, 2024.
In Pakistan, undoubtedly, higher judiciary’s involvement in political matters has overshadowed its responsibility to address public concerns and plight of common litigants. This imbalance is reflected in the huge backlog of cases in Supreme Court, about 60% of which has now passed to Federal Constitution Court (FCC), and across all judicial levels, underscoring the system’s inefficiency, thus, highlighting the apparent indifference towards prompt dispensation of justice—main pillar of democracy –for all.
According to many, elevation of Justice Qazi Faez Isa as CJP was a welcome departure from the alleged judicial overreach of his predecessors, but this too proved to be an illusion! Later, Pakistani nation was optimistic that 30th CJP Mr. Justice Yahya Afridi would bring positive reforms to the judicial system by improving access to justice, quality of judges and swift dispute resolutions. This again proved delusive rather, deceptive.
Subsequent to the approval of 26th Amendment on October 21, 2024, Mr. Justice Yahya Afridi, was nominated on October 22, 2024 as Pakistan’s 30th Chief Justice, bypassing two illustrious judges senior to him, Mr. Justice Syed Mansoor Ali Shah and Mr. Justice Munib Akhtar.
President of Pakistan, Asif Ali Zardari, notified Mr. Justice Yahya Afridi on October 23, 2024 as Chief Justice of Pakistan, and he took oath of his office on October 26, 2024 for a term of three-years. He will be the last Chief Justice of Pakistan till October 22, 2027 as per 27th Amendment.
The prevalent main malady in Pakistan’s judicial system is the prolonged duration of legal proceedings, often spanning over decades before reaching finality. Will FCC, after failure of constitutional benches to solve this chronic issue, succeed?
The FCC, in the wake of 27th Amendment, will hear all cases, involving political issues or otherwise that require interpretation of any provision of the Constitution. The FCC will also consider all leaves to appeals arising from the orders/judgements made in writs filed under Article 199 of the Constitution, barring cases, which relates to “rent and family, except guardianship and such other matters as may be determined by law” [Article 175F(1)(c)].
Unfortunately, political polarizations in the aftermath of Panama’s case and selective accountability diluted valiant common struggle waged by all segments of society, most notably lawyers, media, social and political activists, for restoration of an independent judiciary. What a tragedy that even after dawn of civilian era (sic) in 2009, people are crying for their fundamental rights at the fag end of 2025—tragically this will continue in 2026 and beyond!
There now prevails a deadly disillusionment about “justice” promised by all the political parties in 2009. Everybody says that there is a need for implementing rule of law and good governance and strict enforcement of the 1973 Constitution, as these alone can put an end to the recurrent chaotic situation in the state.
However, open and blatant interference of Executive in getting tax cases involving billions in their favour at various High Courts have exposed all claims for justice in the wake of 26th Amendment. Establishing themselves as the recovery arm of the New East India Company i.e. International Monetary Fund (IMF), the local gumashtas [vernacular term invented for agents of Company Bahdar], rulers of the day are destroying whatever little faith citizens of State had in the system!
Our history is marred by anti-people and autocratic rules—both military and civilian alike. Asghar Khan’s case revealed the sordid events—how the de facto rulers, mighty men in khaki, tried to ignore and distort people’s mandate. This process continued and reaffirmed with the events of April 2022 and developments thereafter. Not only the unabated interference in politics by men in khaki, but also the role of judiciary in validating their coups d’états and extraconstitutional acts is equally deplorable in our history.
Like all other institutions, judiciary in the post-independence period, suffered due to weak democratic traditions, fights between economic vested interests, rivalry of influential politicians and bitter power struggle between the landowner cliques and civil-military bureaucracy.
In Asghar Khan’s case, Supreme Court identified faces responsible for undermining the political system but absolved the institution saying these were their “individual acts”. It was admitted that huge funds were released by a bank for political purposes. Later, the Federal Investigation Agency (FIA) reported, “nothing was proved”! This case exposed the very fragility of a system where rule of law had been and is still being flouted with impunity. The review petition of the main accused and order to FIA to continue investigation in April 2019 are no longer of interest to anyone—not even to the so-called vibrant (sic) media.
As “press and nation rise and fall together”, the same is true for judiciary. Of course, no organ of the State works in isolation from socio-economic-political conditions, but it is also a fact that present-day Federal Constitution Court and Supreme Court are again faced with an historic challenge to prove that those who adjudge others, have nothing to hide.
Accountability must start from the highest adjudicators and claimants of defending ideological frontiers of the only Islamic country with nukes and missiles. They should come forward voluntarily and declare true incomes/assets/liabilities of self, spouses and dependents. Once higher judiciary becomes transparent by truthful voluntary declarations, the mighty men in khaki and mufti will have to follow suit to prove by their actions, not by words, supremacy of the Constitution.
It is time that all pro-people forces and masses en bloc resolve for establishing a true democratic rule, egalitarian society and accountability of all, not selective of politicians when in opposition or someone being defiant to those who claim to be so-called defenders of Nazaria-i-Pakistan (Pakistan ideology) and their cronies.
The self-acclaimed defenders (ab)use ideology and religion to deprive the people of their inalienable right of self-governance and prosperity. The process of accountability should be for all, not for politicians alone, must be strictly as per law and across the board, fulflling all requirements of Article 10A of the Constitution.
______________________________________________________
Dr. Ikramul Haq, Advocate Supreme Court, Adjunct Faculty at Lahore University of Management Sciences (LUMS), member Advisory Board and Visiting Senior Fellow of Pakistan Institute of Development Economics (PIDE), holds LLD in tax laws. He was full-time journalist from 1979 to 1984 with Viewpoint and Dawn. He also served Civil Services of Pakistan from 1984 to 1996.