Misbah said economies with a more effective justice system have more developed credit markets and an overall higher level of development. PHOTO: FILE
ISLAMABAD:
As in previous general elections, the role of the higher judiciary remained deeply contested before and after the February 8, 2024 elections, but what distinguishes the post-election phase is the speed and scale with which the judicial edifice itself has been reshaped, recalibrating the balance between the courts, the executive and electoral control.
The political order that emerged after February 8 significantly reconfigured the justice system through the 26th and 27th constitutional amendments.
Although the role of the judiciary in facilitating and maintaining the current political arrangement cannot be ignored, Defense Minister Khawaja Asif himself has called the dominant order a “hybrid system,” a description that keeps the debate on institutional alignment alive.
During the 2018 elections, a three-judge bench headed by former Chief Justice Saqib Nisar declared Imran Khan “Sadiq and Ameen” (truthful and trustworthy). At the same time, the Supreme Court oversaw the conviction of former Prime Minister Nawaz Sharif and his daughter Maryam Nawaz before the elections, a sequence of events that left a lasting imprint on the electoral landscape.
Ahead of the 2024 elections, a larger bench headed by former Chief Justice Qazi Faez Isa has revisited earlier decisions on disqualification under Article 62(1)(f) of the Constitution, a decision that benefited PML-N supremo Nawaz Sharif and Jahangir Khan Tareen.
However, in a parallel development, another constituency headed by the then CJP Isa declared PTI’s intra-party elections illegal, depriving the party of its electoral symbol just days before the polls. The January 13 order further fueled questions about electoral credibility.
Even though the SC, under erstwhile CJP Isa, played a decisive role in fixing the election date and strongly opposed the Lahore High Court’s (LHC) suspension of notifications related to the appointment of executive returning officers, the situation changed significantly once the PTI was deprived of its electoral symbol.
The Election Commission of Pakistan subsequently declared the PTI candidates as independents, thus sealing a watershed in the electoral process.
Before February 8, the PTI repeatedly complained about the lack of a level playing field, while its leaders were convicted on multiple charges. Serious concerns have been raised about whether the courts followed due process during Imran Khan’s trials. Despite this context, the election results themselves were a shock.
Rather than tackling alleged irregularities, the higher judiciary, led by former CJP Isa, increasingly appeared as a guarantor of the post-election system. When Malik Shahzad Ahmad, Chief Justice of the Lahore High Court, appointed outspoken judges as election tribunals, the ECP resisted their notification. The LHC ordered their notification, but instead of filing an intrajudicial appeal, the ECP approached the Supreme Court, which overturned the LHC’s decision.
Soon after, Malik Shahzad Ahmad was elevated to the Supreme Court through a majority decision of the Judicial Commission of Pakistan.
The PTI has also filed petitions in the Supreme Court seeking an inquiry into the February 8 elections. These cases remain pending and have been transferred to the Federal Constitutional Court (FCC).
On July 12, 2024, the Supreme Court ruled by majority that the PTI was entitled to reserved seats. However, the decision was never implemented. In October 2024, the federal government passed the 26th constitutional amendment, introducing sweeping changes to the justice system. The executive refused to support the elevation of the most senior judge, Syed Mansoor Ali Shah, to the post of chief justice.
Following this amendment, the domination of the executive over the judiciary became more pronounced. Constitutional judges handed down key verdicts in favor of the federal government, including overturning the decision on reserved seats.
The 27th constitutional amendment, adopted in November, further reduced the authority of the Supreme Court and created the Federal Constitutional Court, whose judges are appointed by the prime minister.
Former Additional Attorney General Tariq Mahmood Khokhar said the PTI election symbol case collapsed on February 8 due to the people’s verdict.
“It was an act of raw judicial power reminiscent of Muhammad Munir, Sheikh Anwaarul Haq and Irshad Hassan Khan. In the words of US Justice Antonin Scalia, it constitutes ‘an affront to the principle of democratic government — deprives the people of the most important freedom: the freedom to govern themselves,'” he noted.
He warned that the consequences included tainted elections, an attack on democracy, constitutional ambivalence, a fractured nation and a loss of public legitimacy in constitutional institutions.
“There can’t be many who don’t understand cause and effect,” Khokhar added.
Tariq Khokhar further said that the judiciary is transforming into an instrument of the executive and has “legitimized” the erosion of democracy, the rule of law and its own independence.
He added that he allowed the trial of civilians in military courts and that his actions and failures brought an end to the moral, constitutional and democratic order of the nation.
At the same time, the judiciary itself has been weakened following the two constitutional amendments adopted by the current regime. When IHC judge Tariq Mahmood Jahangiri, a member of the election tribunal, asked for Form 45s from candidates vying for three TIC seats, the ECP referred the cases to another court.
Earlier, in January last year, an SC bench had said that the ECP had failed to fulfill its constitutional duty of actualizing the will of the people.
