Misbah said that economies with a more effective judiciary have more developed credit markets and a generally higher level of development. PHOTO: FILE
ISLAMABAD:
As in previous general elections, the role of the supreme judiciary remained deeply contested before and after the 8 February 2024 polls, but what sets the post-election phase apart is the speed and extent 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 8 February has significantly reconfigured the judiciary through the 26th and 27th constitutional amendments.
While the role of the judiciary in facilitating and sustaining the current political order cannot be discounted, Defense Minister Khawaja Asif himself has characterized the prevailing order as 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 ahead of the polls, a series of events that left a lasting mark on the electoral landscape.
In the run-up to the 2024 elections, a larger bench headed by former Chief Justice Qazi Faez Isa reiterated earlier rulings on disqualification under Article 62(1)(f) of the Constitution, a move that benefited PML-N supremo Nawaz Sharif and Jahangir Khan Tareen.
But in a parallel development, another bench headed by then CJP Isa declared PTI’s intra-party elections illegal, stripping the party of its election symbol days before the polls. The January 13 order further fueled questions about the credibility of the voters.
Although the SC, under former CJP Isa, played a crucial role in fixing the election date and strongly protested the Lahore High Court’s (LHC) suspension of notifications related to the appointment of returning officers from the executive branch, the ground changed significantly when the PTI was stripped of its election symbol.
The Election Commission of Pakistan subsequently declared PTI candidates as independents, sealing a decisive turn in the electoral process.
Prior to February 8, the PTI repeatedly complained about a lack of a level playing field while its leadership faced convictions on multiple charges. Serious concerns were raised about the courts’ adherence to due process during Imran Khan’s trials. Despite this background, the election result itself came as a shock.
Instead of addressing alleged irregularities, the superior judiciary, led by former CJP Isa, increasingly appeared to act as a guarantor of the post-election system. When the then Lahore High Court Judge Malik Shahzad Ahmad nominated outspoken judges as election judges, the ECP resisted notifying them. The LHC ordered their notification, but instead of filing an internal appeal, the ECP approached the Supreme Court, which set aside the LHC verdict.
Soon after, Malik Shahzad Ahmad was elevated to the Supreme Court through a majority decision of the Judicial Commission of Pakistan.
The PTI also moved petitions in the Supreme Court seeking a probe into the February 8 elections. These cases remain pending and have now been transferred to the Federal Constitutional Court (FCC).
On 12 July 2024, the Supreme Court ruled by a majority that 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 director refused to support the appointment of Chief Justice Syed Mansoor Ali Shah as Chief Justice.
After the amendment, executive dominance over the judiciary became more pronounced. Constitutional benches delivered important judgments in favor of the federal government, including overturning the reserved seats.
The 27th constitutional amendment, passed in November, further reduced the Supreme Court’s authority and established 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 because of the verdict of the people.
“It was a judicial act of brute force, reminiscent of Muhammad Munir, Sheikh Anwaarul Haq and Irshad Hassan Khan. In the words of US Justice Antonin Scalia, it amounts to ‘—a violation of the principle of democratic governance—depriving 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 divided nation and loss of public legitimacy in constitutional institutions.
“There cannot be many who fail to understand the cause and effects,” Khokhar added.
Tariq Khokhar further stated that the judiciary is being transformed into an instrument of the executive and has “legitimized” the erosion of democracy, the rule of law and its own independence.
He added that it has sanctioned the trial of civilians by military courts and that its actions and failures have brought the nation’s moral, constitutional and democratic order to an end.
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, acting as an election tribunal member, sought Form-45s from candidates contesting three ICT seats, the ECP referred the cases to another court.
Earlier, in January last year, an SC bench declared that the ECP had failed to discharge its constitutional duty to actualize the will of the people.
