The year the judiciary lost everything |
On March 11, 1913, a rising barrister was quizzed on the judiciary by our British overlords. M. A. Jinnah was 36 years old; his interrogator was Murray Hammick of the Royal Commission on Public Services (and a future governor of Madras).
Jinnah was arguing that a native might make as good a judge as any white man. For us poor stragglers in 2025, one exchange stands out:
Hammick: How do you propose to recruit this higher judicial branch, which you say should be recruited from the bar?
Jinnah: I should say by nomination only … [which] must be in the hands of an independent board.
Hammick: What board would you have?
Jinnah: I should like to have a board consisting of the judges of the High Court, and some of the leading members of the bar, because those are the only people who would be really competent to judge.
Well over a century ago, Jinnah’s instinct was the correct one: that the rule of law is best guarded by judges appointing judges. Not the executive (read: the generals); not ruling party parliamentarians; and not — as one laughably effete suggestion has it — academics, commentators, social scientists, and Charlie’s aunt.
To the Quaid, it would be judges and some of the bar. Sadly, this formula took a century to find its closest expression: in the judicial commission of the 18th and 19th amendments. While infiltrated by two of the executive’s men — the attorney general and the law minister — and saddled with a mostly defunct parliamentary committee, the judges nonetheless held sway.
It was an arrangement far from perfect, but much better than the alternative: judges appointed by shahi firman. We know this because Pakistan’s history has proven Jinnah right and right again: as we’ve written in these pages, coups came gift-wrapped as early as 1954; ex-chief justices became Ayub and Yahya’s law ministers; Bhutto extended pliant judges, and Zia purged defiant ones.
In fact, whenever the judiciary snatched back some degree of independence — whether in the Al-Jehad case in 1996, or through a new commission in 2010 — it was in direct response to executive excesses: Benazir packing the court, or Musharraf placing judges under house arrest.
The rise and rise of the suo motu, doubtless abused, was again a correction to Musharraf’s henchmen yanking a serving chief justice by the hair; the Lawyers’ Movement exploded into the streets soon after.
All of which makes much of this year’s commentary around the judiciary so absurd: it’s almost as if activist judges were born in a vacuum, in a country that never saw four martial laws, far more PCOs, the physical storming of the Supreme Court, or the May 12 massacre in Karachi.
And almost as if 2025 — the year of the 26th’s amendment’s consequences and the 27th’s birth — wasn’t the exact opposite of the founder’s vision.
The year began with the Pakistan that Qazi Faez Isa had left behind: judicial appointments stripped of their independence; a regime installed via a stolen election that the Isa court had shut its eyes to; and a ‘Constitutional Bench’ far, far away from public confidence.
Never did a judicial successor have such a low bar to overcome. It is to the Yahya court’s distinction that the contest is now a close one.
That is, if it can still be called a Yahya court at all, which didn’t author a single decision of enduring legal worth this year. It focused its energies instead on inventorying its broom closet — 6,344 cases have been “e-filed”, sings the Court’s website, and 8,735 judgments boast QR codes in the manner of ketchup bottles.
At other times, it amused itself with painful bureaucratese: like permissions for foreign travel, or new codes of conduct demanding a near-monastic withdrawal from public affairs — both benefit mediocrities with nothing to contribute intellectually in the first place.
If there was a new centre, it was the Constitutional Bench’s Justices Mazhar and Aminuddin, whose verdicts were at par with the executive’s wildest dreams. By the time the year closed, lawyer-columnists had dubbed the Constitutional Bench