Misbah said economies with a more efficient judiciary have more developed credit markets and an overall higher level of de-velopment. PHOTO: FILE
ISLAMABAD:
As with previous general elections, the role of the superior judiciary remained deeply contested before and after the February 8, 2024 polls, but what sets the post-election phase apart is the speed and scale at which the judicial edifice itself has been reshaped, recalibrating the balance between the courts, the executive and electoral oversight.
The political order that emerged after February 8 has significantly reconfigured the judiciary through the 26th and 27th constitutional amendments.
While the judiciary’s role in facilitating and sustaining the present political arrangement cannot be brushed aside, Defence Minister Khawaja Asif has himself characterised the prevailing order as a “hybrid system”, a description that keeps alive the debate over institutional alignment.
During the 2018 elections, a three-judge bench led 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 sequence of events that left a lasting imprint on the electoral landscape.
In the run-up to the 2024 elections, a larger bench headed by former chief justice Qazi Faez Isa revisited 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 led by then CJP Isa declared PTI’s intra-party elections illegal, stripping the party of its election symbol just days before polling. The January 13 order further fuelled questions about electoral credibility.
Although the SC, under former CJP Isa, played a decisive role in fixing the election date and firmly objected to the Lahore High Court’s (LHC) suspension of notifications related to the appointment of returning officers from the executive, the ground shifted markedly once PTI was deprived of its election symbol.
The Election Commission of Pakistan subsequently declared PTI candidates as independents, sealing a decisive turn in the electoral process.
Before February 8, PTI repeatedly complained of a lack of level playing field, while its leadership faced convictions on multiple charges. Serious concerns were raised over courts’ adherence to due process during Imran Khan’s trials. Despite this backdrop, the election results themselves came as a shock.
Rather than addressing alleged irregularities, the superior judiciary, led by former CJP Isa, increasingly appeared to act as a guarantor of the post-election system. When then Lahore High Court chief justice Malik Shahzad Ahmad nominated outspoken judges as election tribunals, the ECP resisted notifying them. The LHC ordered their notification, but instead of filing an intra-court appeal, the ECP approached the Supreme Court, which set aside the LHC ruling.
Shortly thereafter, Malik Shahzad Ahmad was elevated to the Supreme Court through a majority decision of the Judicial Commission of Pakistan.
PTI also moved petitions in the Supreme Court seeking a probe into the February 8 elections. These matters remain pending and have now been transferred to the Federal Constitutional Court (FCC).
On July 12, 2024, the Supreme Court ruled by 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 judicial system. The executive declined to support the elevation of senior-most judge Syed Mansoor Ali Shah as chief justice.
Following the amendment, executive dominance over the judiciary became more pronounced. Constitutional benches delivered key verdicts favouring the federal government, including the reversal of the reserved seats ruling.
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 due to the people’s verdict.
“It was an act of judicial raw 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 rule — robs the People of the most important liberty: the freedom to govern themselves,'” he noted.
He warned that the consequences included marred elections, an assault on democracy, constitutional ambivalence, a fractured nation and loss of public legitimacy in constitutional institutions.
“There cannot be many who fail to grasp the cause and effects,” Khokhar added.
Tariq Khokhar further stated that the judiciary is being transformed into an instrument of the executive and has “legitimised” the erosion of democracy, the rule of law and its own independence.
He added that it has sanctioned the trial of civilians in 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 enacted by the present regime. When IHC judge Tariq Mahmood Jahangiri, serving as an election tribunal member, sought Form-45s from candidates contesting three ICT seats, the ECP referred the cases to another tribunal.
Earlier, in January last year, a SC bench declared that the ECP had failed to perform its constitutional duty to actualise the will of the people.
