Misbah said economies with a more efficient judiciary have more developed credit markets and a higher overall level of development. PHOTO: ARCHIVE
ISLAMABAD:
As in previous general elections, the role of the higher judiciary remained deeply controversial before and after the 8 February 2024 elections, but what sets the post-election phase apart is the speed and scale with which the judicial edifice itself has been reshaped, recalibrating the balance between the courts, the executive and electoral supervision.
The political order that emerged after February 8 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 settlement cannot be ignored, 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 before the elections, a sequence of events that left a lasting mark on the electoral landscape.
In the run-up to the 2024 elections, a larger court headed by former Chief Justice Qazi Faez Isa reviewed 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.
However, in a parallel development, a different bench headed by the then CJP Isa declared PTI’s intra-party elections illegal, stripping the party of its electoral symbol just days before the elections. The January 13 order further fueled doubts about electoral credibility.
Although the SC, under former CJP Isa, was instrumental 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 terrain changed markedly once the PTI was deprived of its electoral symbol.
The Election Commission of Pakistan subsequently declared the PTI candidates independent, sealing a decisive turn in the electoral process.
Before February 8, the PTI repeatedly complained about a lack of level playing field, while its leaders faced convictions on multiple charges. Serious concerns were raised about the courts’ respect for due process during the Imran Khan trials. Despite this context, the election results themselves were a surprise.
Instead of addressing alleged irregularities, the higher judiciary, headed by former CJP Isa, increasingly appeared to act as a guarantor of the post-election system. When the then chief justice of the Lahore High Court, Malik Shahzad Ahmad, nominated outspoken judges as electoral tribunals, the ECP resisted notifying them. The LHC ordered its notification, but instead of filing an intra-judicial appeal, the ECP went to the Supreme Court, which annulled the LHC’s ruling.
Soon after, Malik Shahzad Ahmad was elevated to the Supreme Court by a majority decision of the Judicial Commission of Pakistan.
The PTI also filed petitions in the Supreme Court seeking an inquiry into the February 8 elections. These matters remain pending and have now been transferred to the Federal Constitutional Court (FCC).
On 12 July 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, which introduces sweeping changes to the judicial system. The executive refused to support the elevation of senior judge Syed Mansoor Ali Shah as chief justice.
Following the amendment, the executive’s dominance over the judiciary became more pronounced. The constitutional benches issued key verdicts in favor of the federal government, including overturning the ruling on reserved seats.
The 27th constitutional amendment, passed in November, further reduced the authority of the Supreme Court and established the Federal Constitutional Court, whose judges are appointed by the prime minister.
Former Additional Solicitor General Tariq Mahmood Khokhar said that the PTI election symbol case collapsed on February 8 due to the people’s verdict.
“It was an act of pure 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, it robs the people of their most important freedom: the freedom to govern themselves,'” he said.
He warned that the consequences included ruined elections, an attack on democracy, constitutional ambivalence, a fractured nation, and loss of public legitimacy in constitutional institutions.
“There cannot be many who do not 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 he has sanctioned the prosecution of civilians in military courts, and that his actions and failures have put an end to the nation’s moral, constitutional and democratic order.
At the same time, the judiciary itself has been weakened following the two constitutional amendments enacted by the current regime. When IHC judge Tariq Mahmood Jahangiri, serving as a member of the electoral tribunal, asked for Form 45 from candidates contesting for three ICT seats, the ECP referred the cases to another tribunal.
Earlier, in January last year, an SC court declared that the ECP had failed in its constitutional duty to realize the will of the people.
