Athar Minallah, Supreme Court Justice. PHOTO: FILE
ISLAMABAD:
Former Supreme Court Justice Athar Minallah has said that when the executive branch abdicates its fiduciary duty to those in custody, judicial intervention is not activism but a constitutional obligation.
Speaking at Harvard Law School, Justice (retd) Minallah said the true test of judicial independence lies not in speeches or rhetoric, but in whether the disempowered trust that the courts will protect them when their rights are violated.
Reflecting on his tenure and the institutional struggles facing the judiciary, he said the courts must stand as guardians of the voiceless, even when it 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 elevated to the Islamabad High Court, it was not yet a fully consolidated institution. Although it had extraordinary constitutional authority to issue the great writs – certiorari, mandamus, prohibition, quo warranto and habeas corpus – its independence was not yet assured in practice. We were operating within a hybrid culture and the authoritarian constitution did not rest on a hybrid, constitutional power. the unchecked will of the powerful elite To serve the voiceless was dangerous and guarding them was willful defiance.
He said that building judicial independence required conscious efforts and courage from judges who were willing to uphold constitutional values despite pressure.
“Judges of integrity had to be identified and persuaded to accept elevation despite opposition from entrenched power centers. Independence was not inherited—it was constructed. Those who took the oath proved fearless. Some would later pay a price for that independence. Institutional courage, we learned, is both powerful and fragile.”
Justice (retd) Minallah emphasized that the independence of the courts must ultimately be judged on the basis of whether the courts create trust among society’s most vulnerable.
“The true measure of judicial independence lies not in rhetoric, but in whether the powerless believe the court will protect them when they are wronged. And the powerless came.”
He also reflected on the evolving scope of constitutional rights and argued that legal systems need to rethink their relationship to the natural world and the wider concept of life.
“When we speak of rights, we think of people. Our Constitution, our laws, our struggles—all center on the human condition. But does law hear only the powerful human voice, or the silent pulse of life beyond us? If dignity and the right to exist are inherent in life itself, constitutional compassion can stop at our own species.”
In relation to the global climate crisis, he said the idea of climate justice risks becoming empty rhetoric unless legal systems recognize the inherent value of life.
“Climate justice has emerged as a recurring theme in global summits and political forums. But for many victims, it remains little more than rhetoric—words spoken in the halls of power while destruction unfolds in silence. The remedy begins with a simple but transformative recognition: life possesses the inherent value that is an antipotent in any form of thinking that has brought humanity to the brink of lived catastrophe.”
He said this recognition requires a moral shift in humanity’s relationship with nature.
“It requires a moral recalibration – a shift from domination to guardianship. Humanity must remember that its relationship with nature is not that of the conqueror or the exploiter, but that of the steward – for the guardian. The rationality that once justified control must now demand responsibility.”
Justice (retd) Minallah also recounted cases during his tenure involving prisoners’ rights and enforced disappearances, describing them as defining moments of constitutional protection.
“Overcrowded prisoners, without counsel or voice, sent handwritten pleas by regular mail. For years they endured degrading conditions.”
He said those petitions ultimately led to a landmark judicial declaration of prisoners’ rights.
“Their cries converged on a single, consolidated judgment on the rights of prisoners – the first comprehensive statement in our jurisdiction. But constitutional guardianship requires more than words. I myself visited the Central Jail, Adiala, Rawalpindi and constituted an Implementation Commission to ensure compliance.”
He added that families of the forcibly disappeared turned to the courts when other avenues had failed.
“Families of the enforced disappearances came from distant corners – because no one else would hear them. The court formed an unprecedented commission that forged jurisprudence that did not rest on paper but moved in reality.”
Justice (retd) Minallah said the impact of judicial intervention became visible when state authorities were confronted.
“When those responsible were confronted, the missing returned. In that moment, the Constitution was no longer text – it was protection made real. As prime ministers, journalists and human rights defenders faced coercive state power, the Court affirmed a simple truth: the state exists to protect rights, not crush them.”
