Judges Speak Out

Justice Athar Minallah was right when he said that the acceptance of hybrid rule means “there is dictatorship and there is no constitutional governance”. However, matters go to another level when federal ministers indicate that their government is powerless and that the real authority lies somewhere else. It’s not just an admission but acceptance of authoritarian rule by political leaders.

Notwithstanding Defence Minister Khawaja Asif’s strong defence of a ‘hybrid’ regime, the fact is that his party’s position is merely that of a sleeping partner in a power structure dominated by the security establishment. The façade of civilian rule has worn thin.

Justice Minallah has lamented the lack of constitutional governance in the country, which according to him has led to elite capture. “There is no rule of law or Constitution in the country; there is elite capture,” he said in a grim reminder of the prevailing systemic failure in Pakistan.

Nations fail when they lack a strong rule of law. The absence of constitutional rule leads to the strengthening of extractive institutions, which benefits few. Countries with strong rule of law and inclusive institutions progress much faster, with the benefits of economic development reaching a larger section of the population.

The extractive nature of the Pakistani state has been a major reason for our backwardness and increasing economic disparity, which is very much evident in the country’s growing poverty levels.

It is tragic that almost 45 per cent of the population lives below the poverty line and that this shameful percentage is clearly growing. The system cannot even provide the people with education and other essential facilities. But our defence minister wants us to believe that the country is witnessing an economic revival because of ‘hybrid’ rule. Our rulers fail to see the rising discontent in the populace on account of both their economic plight and the denial of their fundamental democratic rights.

The very foundation of the so-called hybrid regime is based on manipulated elections and the usurpation of the people’s constitutional right to choose their own representatives. The Constitution has been marred by amendments passed by a parliament with a questionable mandate. The independence of the judiciary has been the first casualty of looming authoritarianism in the form of ‘hybrid’ rule. It is not incorrect to say that through the 26th Constitutional Amendment, the top judiciary has virtually been turned into an extension of the executive.

According to Justice Minallah, the Constitution was the expression of the people’s will and was based on the people’s right to govern through their elected representatives. “No institution or government officer should engage in political engineering. Public representatives must come through free and fair elections. But till today, this has only remained our dream,” he said. It is not just unelected institutions that are to blame, but also political leaders who are ready to be co-opted into an unconstitutional set-up for the sake of power.

Our history is replete with such examples. Defenders of ‘hybrid’ rule like Khawaja Asif have conveniently forgotten their own commitments, while in opposition, to restoring civilian supremacy and upholding the Constitution. Some ruling party leaders reportedly defend their actions as a ‘necessary compromise’. They refuse to admit that the prevailing political instability in the country is rooted in the denial of the public mandate and the undermining of rule-based constitutional governance.

It is not just unelected institutions that are to blame, but also political leaders who are ready to be co-opted into an unconstitutional set-up for the sake of power.

A controlled media can be used to gloss over the brewing political and social discontent but it won’t help resolve the problem. The latest convictions of opposition lawmakers and their being unseated have further damaged the legitimacy of parliament. These dubious measures are meant to provide the ruling coalition with a two-thirds majority in the House that would allow it to carry out more changes to the Constitution, thus further eroding the rule of law. A tamed judiciary now makes it extremely difficult to seek judicial recourse.

Justice Minallah is not the only Supreme Court judge to speak out against the curtailment of judicial independence and the lack of the rule of law; there have been other strong voices within the institution against the manipulation of the judiciary. In a series of letters, Justice Mansoor Ali Shah, the senior puisne Supreme Court judge, has repeatedly drawn the attention of the chief justice to the violation of the rules.

Justice Shah has questioned the legitimacy of the apex court, pointing out that petitions against the 26th Amendment had remained unheard for nearly a year, though they concerned the Supreme Court’s independence. During that period, the apex court was perceived as being packed by judges appointed by what many have seen as a controversial judicial committee. The procedure for the appointment of judges at the high courts and the apex court was changed under the 26th Amendment.

“They must be heard by the original full court, excluding judges elevated after the amendment. Until then, any initiative under your leadership remains institutionally fragile, for its foundation is constitutionally suspect,” he has asserted in a recent letter. “True leadership lies not in managing compliance but in ensuring that the court rises above suspicion as the fearless guardian of the Constitution.”

Yet another letter by Justice Shah and three other senior judges last week highlighted the worsening rift within the apex court. The letter questioned the process that has been adopted for the review and approval of the Supreme Court Rules, 2025, and termed the full court meeting called for this purpose a mere “stamp of approval” for rules already decided and approved unilaterally.

The four signatories included Justices Mansoor Ali Shah, Munib Akhtar, Athar Minallah, and Ayesha Malik, who skipped the full court meeting. The judicial actions seem to be part of a move to take away whatever independence of the judiciary is left. The spectre of authoritarianism looms large.

- Courtesy Daily Dawn