Athar Minallah, judge of the Supreme Court. PHOTO: FILE
ISLAMABAD:
Former Supreme Court Justice Athar Minallah said that when the executive abdicates its fiduciary duty to those in detention, judicial intervention is not activism but a constitutional obligation.
Speaking at Harvard Law School, Justice (ret.) Minallah said the true test of judicial independence lies not in speeches or rhetoric, but in the impotent trust that the courts will protect them when their rights are violated.
Reflecting on his tenure and the institutional struggles facing the justice system, he said courts must act as guardians of the voiceless, even if that requires confronting entrenched centers of power.
Justice (retd) Minallah recalled that when he was elevated to the Islamabad High Court (IHC), the institution was still evolving and operating in a difficult constitutional environment.
“When I was appointed to the Islamabad High Court, it was not yet a fully consolidated institution. Although it was endowed with extraordinary constitutional power to issue the major writs – certiorari, mandamus, prohibition, quo warranto and habeas corpus – its independence was not yet assured in practice. We were operating in a hybrid authoritarian constitutional culture, where power rested not on constitutional supremacy but on the unchecked will of the powerful elite was perilous and to protect them was a deliberate challenge.
He said building judicial independence required deliberate efforts and courage from judges willing to uphold constitutional values despite pressure.
“It took identifying honest judges and persuading them to accept their elevation despite resistance from entrenched centers of power. Independence was not inherited, it was built. Those who took the oath were fearless. Some would later pay the price for that independence. Institutional courage, we learned, is both powerful and fragile.”
Justice (retd) Minallah emphasized that judicial independence should ultimately be judged on whether the courts inspire confidence in the most vulnerable people in society.
“The true measure of judicial independence lies not in rhetoric but in the belief of the powerless that the court will protect them if harmed. And the powerless have arrived.”
He also reflected on the evolving scope of constitutional rights, arguing that legal systems must reconsider their relationship to the natural world and the broader concept of life.
“When we speak of rights, we think of humans. Our Constitution, our laws, our struggles are all centered on the human condition. But does the law hear only the powerful human voice, or also the silent pulse of life beyond us? If dignity and the right to exist are inherent in life itself, can constitutional compassion stop at our own species.”
Addressing the global climate crisis, he said the idea of climate justice risks becoming empty rhetoric unless legal systems recognize the intrinsic value of life.
“Climate justice has become a recurring theme at global summits and policy forums. Yet for many victims, it remains little more than rhetoric – words spoken in places of power while devastation unfolds silently. The cure begins with a simple but transformative recognition: life has intrinsic value in all its forms. Accepting this truth is the antidote to the anthropocentric mentality that has brought humanity to the brink of lived catastrophe.”
He said this recognition requires a moral shift in humanity’s relationship with nature.
“This requires a moral recalibration – a shift from domination to guardianship. Humanity must remember that its relationship with nature is not that of a conqueror or exploiter, but of a steward – of a guardian. The rationality that once justified control must now demand responsibility.”
Justice (retired) Minallah also recounted cases during his judicial tenure involving prisoners’ rights and enforced disappearances, describing them as defining moments for constitutional protection.
“Overcrowded prisoners, without lawyers or voices, sent handwritten requests by regular mail. For years, they endured degrading conditions.”
He said those petitions ultimately led to a historic judicial declaration on prisoners’ rights.
“Their cries converged into a single, consolidated judgment on prisoners’ rights – the first comprehensive declaration in our jurisdiction. But constitutional trusteeship requires more than words. I myself visited Adiala Central Prison, Rawalpindi, and constituted an implementation committee to ensure compliance.”
He added that the families of those forcibly disappeared had turned to the courts when other avenues had failed.
“The families of the enforced disappeared came from distant corners – because no one else wanted to hear them. The court formed an unprecedented commission, forging jurisprudence that did not rely on paper but evolved in reality.”
Justice (retd) Minallah said the impact of the judicial intervention became visible when the state authorities were confronted.
“When those responsible were confronted, the missing returned. At that point, the Constitution was no longer a text, it was a protection made real. When prime ministers, journalists and human rights defenders were confronted with the coercive power of the state, the court reaffirmed a simple truth: the state exists to protect rights, not to crush them.”
