Rectifying the past, neglecting the present

The Supreme Court has righted a ‘historic wrong’. It has admitted that PPP founder Zulfikar Ali Bhutto was executed after an unfair trial that lacked due process. “The proceedings of the trial by the Lahore High Court and of the appeal by the Supreme Court do not meet the requirements of the fundamental right to a fair trial and due process enshrined in Articles 4 (right of individuals to be dealt with in accordance with the law) and 9 (security of person) of the Constitution and later guaranteed as a separate and independent fundamental right under Article 10A of the Constitution (due process),” Chief Justice Qazi Faez Isa stated while pronouncing the top court’s “opinion” on a long-pending presidential reference.

There have been some cases in our judicial history that created a public perception that either fear or favour deterred the performance of our duty to administer justice in accordance with the law, the nine-judge bench opined. “We must, therefore, be willing to confront our past missteps and fallibilities with humility, in the spirit of self-accountability and as a testament to our commitment to ensure that justice shall be served with unwavering integrity and fidelity to the law,” it further stated. “We cannot correct ourselves and progress in the right direction until we acknowledge our past mistakes.”

It took the apex court 44 years to rectify this “historic wrong.” Bilawal Bhutto Zardari, a grandson of the late Bhutto, welcomed the unprecedented judicial mea culpa. “Our family waited three generations to hear these words,” he wrote on the popular microblogging site ‘X’. He called it a “historic decision” which has set a “new tradition” that would “improve the system.” This admission of fault came in response to the judicial reference filed by Asif Ali Zardari during his tenure as president in 2011. Zardari had sought the apex court’s opinion on revisiting the death penalty handed to the PPP founder. The subsequent governments of PML-N and PTI didn’t withdraw the reference, leading to speculation that they also wanted the apex court to undo a wrong done to a former prime minister during the martial law regime of Gen Ziaul Haq.

Prime Minister Shehbaz Sharif also hailed the court opinion and said it is a “positive development that a wrong done by a court has been corrected by a court.” It’s encouraging that the Sharifs, the traditional political nemeses of the Bhutto dynasty, have changed their mind – thanks to their newfound political bonhomie with the PPP. Just to recall, Sharif’s elder brother, Nawaz Sharif, would call Bhutto a “traitor” unworthy of the epitaph of “martyr”. Instead, he would eulogise Bhutto’s tormentor Gen Ziaul Haq as a “shaheed”.

The top court has only endorsed what everyone knew since Bhutto’s hanging: that it was a colossal miscarriage of justice, or more bluntly a “judicial murder” and hence an ugly blot on our justice system. Nonetheless, the Supreme Court’s public mea culpa is significant because the justices have stated that they are “willing to confront our past missteps and fallibilities.” Surprisingly however, while the judiciary has corrected a historic wrong done to a former prime minister, it is repeating the same mistake by wronging another former prime minister. Imran Khan has been jailed in “flimsy cases” through marathon judicial proceedings inside the jail where top lawyers agree Khan was denied the right to a fair trial.

Khan’s party claims that the cases against its leader are politically motivated because he challenged the high and mighty and tried to upend the deeply entrenched system. While rectifying a wrong done to Bhutto 44 years ago doesn’t hold more than symbolic value, Khan is languishing in jail as what Senator Mushahid Hussain Sayed said a “political prisoner.” Our judges are “confronting the past missteps,” but they should also ensure that they don’t create more “historic wrongs” for their successors to correct. The PTI says it hopes that it wouldn’t have to wait 44 years for the judiciary to correct a “historic wrong” done to its founder.

The rule of law plays a crucial function by ensuring that civil and political rights and civil liberties are safe and that the equality and dignity of all citizens are not at risk. It ensures that all persons, institutions and entities, including the state itself, are accountable to laws. For this very reason the rule of law is a fundamental principle embraced in most modern democracies. Only an independent judiciary can defend the rule of law. In Pakistan, however, the past couple of years have particularly seen brazen and blatant erosion of the rule of law, raising serious questions on the judiciary’s performance. This has been acknowledged globally. On the rule of law index of the World Justice Project for 2023, Pakistan was ranked 130th amongst 142 countries. Alarmingly, we rank only above Afghanistan in the greater South Asian region on the same index. This is a damning indictment of our judicial system.

But it doesn’t end here.

The judiciary is the bedrock of any democratic constitution. A functional judiciary must protect right of the citizen and maintain constitutional order at any cost as it is the guardian and interpreter of the Constitution, the supreme law of the land, and all other laws of the state. Our judiciary, however, hasn’t fared well on this front too, especially over the past couple of years, as one political party endured the wrath of the administration with its leaders and workers summarily implicated in court cases and denied all their basic rights. And when they would receive a reprieve, the courts failed to ensure compliance with their orders. This brazen disregard for fundamental rights undermined the judicial system and eroded public trust in it. Our nascent democracy ceded the ground it had managed to wrest over the past two decades.

And the indictment was swift.

Pakistan witnessed a huge slump in its ranking on the 2023 democracy index released by the Economist Intelligence Unit which classified Pakistan as an “authoritarian regime”, a further demotion from the “hybrid regime.” Pakistan slid down by 11 places in the global ranking and entered an entirely new category. “Pakistan registered the greatest deterioration of any country in the region — its score fell by 0.88 to 3.25, resulting in a fall of 11 places in the global ranking table, to 118th,” states the index.

Now, transparent and credible election is vital to democracy. This means the election process embrace inclusivity, accountability, and transparency, to enable the electorate to elect their representatives. But the general elections we just have had were all but free and fair. One contentious judgment by the top judiciary ahead of the elections virtually disenfranchised millions of voters of a popular political party, depriving its candidates of the name of their party and its iconic election symbol of a cricket bat. Nonetheless, that party, PTI, defied all odds, all projections, and all analyses to outvote its rivals. The alleged post-poll result manipulation aside, the apex court ruling in the symbol came back to haunt the PTI again. It deprived the beleaguered party of its rightful share in the reserved seats, which the poll supervisory body then doled out to the parties that do not deserve them. The judiciary says it adjudicated all cases on merit. It might be true. However, it is also a fact that our judiciary is no stranger to controversy as it has over the years became as assertive and active centre of power.

The 2024 election is arguably the least credible election in our history as the Election Commission of Pakistan (ECP) failed to ensure transparency and credibility. The Pakistan Institute of Legislative Development and Transparency (PILDAT), which has been publishing election assessments since 2002, has said that this election received the lowest election fairness score in nearly a decade while asking the ECP to investigate the deficiencies observed during the process. The election was marred by a nationwide cellular service shutdown and delays in announcing results, has created widespread suspicion of vote fraud. The PILDAT’s assessment indicates a concerning decline in fairness scores compared to previous elections. If this wasn’t enough, the Gallup Pakistan Digital Analytics on Elections found that the PTI-backed Independents bagged the most vote share (31%) followed by the PML-N (24%) and PPP (14%); TLP (5%) is 4th largest party in vote share terms.

Importantly, most political parties, barring the PPP, PML-N and MQM – the parties the PTI accuses of “stealing its mandate” – have alleged massive rigging in the elections. Calls for an independent audit of the elections are rising to a crescendo with the PTI, JUI-F, Jamaat-e-Islami, ANP, and PkMAP drawing up plans for a nationwide protest movement. The ECP, however, appears to be unfazed by these growing calls for investigation into election-related matters, including delays in the transmission, consolidation and announcement of provisional results, and the failure to publish signed copies of forms 45, 46, 48 and 49 within 14 days of polling day as required under the Elections Act, 2017.

While the election supervisor is unfazed by growing calls for an investigation, the top judiciary has said that it will not “interfere in the domain of the ECP unless it commits any unconstitutional act.” In such a situation, the aggrieved parties have no other option but to hit the streets. This would be akin to pushing the country into political volatility at a time when we badly need political stability to tackle the crucial economic challenges. If we fail to stabilise the economy, the repercussions would be disastrous. And everyone, the political elite, the judiciary, the media, and the civil and military bureaucracy, would share the responsibility.