Shattered ideals vs bitter pragmatism

Stricken by democratic ideals for decades, one is faced with harsh, unbeatable realities in Pakistan. Our heroes shatter ideals, and bitter pragmatism haunts us. If pragmatism is to be believed, accepting the harsh realities of state power leads to accusations of compromise. Take the case of an independent judiciary, which is a cornerstone of international democratic ideals. One has to bear the weight of the best of the best — our esteemed lordships.

Justice Muhammad Munir, the second chief justice of Pakistan, serving from 1954 to 1960, remains infamous for his contribution to the doctrine of necessity, a principle that justified extraconstitutional actions in the name of state survival. His ruling in the landmark Federation of Pakistan v Maulvi Tamizuddin Khan validated the dissolution of Pakistan’s first constituent assembly, dealing a fatal blow to democratic aspirations in the fledgling state.

Leaving aside this history, there was also Justice Nasim Hassan Shah, who, despite his diminutive stature, cast a giant shadow over Pakistan’s judicial landscape. He played a crucial role in the controversial execution of Zulfikar Ali Bhutto, Pakistan’s first prime minister elected through the adult franchise. 

As one of the Supreme Court judges who upheld Bhutto’s death sentence in 1979, Shah later admitted that there had been external pressure on the judiciary during the case, adding to the controversy surrounding the execution. His role remains a subject of intense debate in Pakistan’s legal and political history.

While many believed that the judiciary had acted under immense pressure, the fact remains that Bhutto was sentenced to death — an act that stained Pakistan’s judicial history forever, much like Justice Munir’s doctrine of necessity, which generously provided legal cover for every unconstitutional adventure, ensuring that the law bent whenever power demanded it.

Yet, despite such precedents, our lordships continued to claim that the judiciary was not independent and that this lack of independence was the reason for bad judgments.

The entire nation, wise and foolish alike, put their faith in Aitzaz Ahsan’s narrative that if the judiciary in Pakistan were truly independent, everything would change, and the country would flourish. As the self-appointed crusader of judicial independence, Aitzaz, draped in his black coat and poetic rhetoric, led the charge like a knight in shining legal armour. 

Lawyers, politicians, and the media all united in a grand movement for the restoration of an independent judiciary and against the executive’s interference in judicial matters, marching and chanting as if the mere restoration of one judge would magically cleanse decades of judicial subservience.

Their struggle culminated in 2009 with the triumphant reinstatement of Chief Justice Iftikhar Muhammad Chaudhry — ushering in a new era where, instead of serving the people, the judiciary simply crowned itself the new absolute authority.

Justice Chaudhry, who was hailed as the saviour of Pakistan’s judiciary, soon transformed into an unchallenged judicial autocrat. What began as a movement for judicial freedom quickly evolved into judicial overreach, with the chief justice interfering in matters as varied as bureaucratic postings and the privatisation of national institutions.

Judicial activism morphed into a judicial dictatorship, with the judiciary eclipsing both the executive and the legislature. Under his tenure, the prime minister of Pakistan and the president became mere bystanders as His Lordship’s authority overshadowed all other branches of government. A defining image of this era was the sight of entire provincial executives standing at the doors of the Supreme Court, awaiting the whims of a single judge. Justice Chaudhry became the de facto ruler, deciding not just legal matters but the very governance of Pakistan.

The legacy of judicial supremacy continued with subsequent chief justices. Justice Mian Saqib Nisar, whose tenure ran from 2016 to 2019, took it upon himself to single-handedly fix all of Pakistan’s problems. Having resolved all pending cases — at least in his own mind — he turned his attention to issues such as healthcare, education, and even infrastructure projects. His most grandiose initiative was the Diamer-Bhasha Dam Fund, where he not only urged citizens to donate but also questioned those who did not contribute. 

The idea that a judge could take over the role of the executive was taken to new heights, with his frequent visits to hospitals in Sindh accompanied by terrified bureaucrats. His tenure cemented the judiciary’s role as an unelected decision-maker in national affairs.

Then came Justice Asif Saeed Khosa, the learned jurist whose claim to fame was sending an elected prime minister, Nawaz Sharif, home through an unprecedented judicial ruling. Nawaz, who had been elected by millions, was dismissed on the basis of an obscure legal technicality regarding an unclaimed salary from a Dubai-based company. 

Justice Khosa deemed a prime minister unfit for office, not through a parliamentary no-confidence motion, but through judicial ingenuity. This ruling set off a chain of political instability, the effects of which continue to reverberate to this day.

Another chapter on judicial intervention was written during the tenure of Chief Justice Umar Ata Bandial, who played a pivotal role in determining the political landscape of Pakistan. His late-night ruling preventing the dissolution of the National Assembly by then-PM Imran Khan effectively paved the way for Shehbaz Sharif’s ascension to power. 

However, as his tenure progressed, CJ Bandial appeared to shift allegiances, openly siding with the opposition, thereby undermining the stability of the very government he had enabled. 

The judiciary, much like the military in Pakistan’s history, began to see itself as the ultimate arbiter of national destiny, approving dismissals of assemblies, restricting parliamentary powers and obstructing executive decisions through restraining orders.

While politicians, generals, and journalists have faced trials, convictions, and even imprisonment, the judiciary remains the last sacred cow of Pakistan. Their lordships are so fiercely independent and supremely powerful that they have graciously taken it upon themselves to determine their own powers, jurisdiction, perks, and even the size of their ever-expanding salaries — because, of course, who better to judge their worth than the judges themselves?

Their lordships remain untouchable, exempt from accountability. If corruption allegations arise against a judge, the worst they face is resignation rather than trial. This unparalleled immunity has ensured that the judiciary continues to operate above the law, unchecked and unchallenged.

Today, the clash between shattered idealism and bitter pragmatism persists. Judicial independence has indeed empowered our lordships but has weakened all other constitutional institutions. 

The latest episode in this saga unfolded with the controversy surrounding Justice Mansoor Ali Shah, a jurist with an unblemished career and a reputation for integrity. When his name surfaced as a potential future chief justice, many, including Bilawal Bhutto, expressed confidence in his leadership. 

However, the powers-that-be reportedly viewed his potential appointment with suspicion, fearing that he would resist the prevailing system. This apprehension upended the anticipated judicial hierarchy, underscoring how non-judicial forces continue to manipulate Pakistan’s judicial landscape.

Idealism dictates that judges should challenge the illegitimate status quo and restore genuine democracy. However, history suggests that such confrontations with entrenched powers often lead to catastrophic consequences. 

The reality is that whenever judicial idealism has threatened the system, the response has been decisive — whether through political manoeuvring, institutional pushback, or the ultimate imposition of martial law.

Thus, while idealism inspires hopes of a reformed judiciary and a stronger democracy, pragmatism suggests a more cautious approach. Rather than inviting another confrontation that could further destabilise the country, a phased restoration of civilian authority might be the only viable path forward.

The dream of an independent judiciary was meant to uphold democracy; instead, it has led to judicial supremacy at the cost of weakening every other institution. In Pakistan, the battle between shattered ideals and bitter pragmatism continues — one where the former inspires revolutions, but the latter ensures survival.

The writer is the editor of Jang in Lahore, an anchor, and the executive director at Geo TV.

Disclaimer: The viewpoints expressed in this piece are the writer's own and don't necessarily reflect Geo.tv's editorial policy.

Originally published in The News