In 1999, when General Pervez Musharraf took over power, he issued a Provisional Constitutional Order (PCO). Several senior judges of the Supreme Court and three judges of the four high courts refused to take an oath under the PCO and were dismissed from the court. Among them were Justice Saeed-uz-Zaman Siddiqui, Justice Nasir Aslam Zahid, and Justice Rasheed Razvi.
The Supreme Court later validated General Pervez Musharraf’s actions of dismissing the elected government and even granted him the authority to amend the constitution, despite the fact that Musharraf’s legal counsel had not requested such powers.
In 2007, when General Musharraf asked Chief Justice Iftikhar Chaudhry to resign, he refused. Consequently, Justice Iftikhar Chaudhry was placed under house arrest, leading to a lawyers’ movement. The Supreme Court’s full bench rejected the reference against Justice Iftikhar Chaudhry, resulting in his reinstatement. During this time, General Musharraf submitted his nomination papers for the presidential elections. Lawyers challenged his candidacy, arguing that, as the army chief, Musharraf was a government employee, which disqualified him from contesting elections.
By law, government employees are not eligible to run for elections. In response, General Musharraf imposed an emergency and issued another PCO, appointing Justice Dogar as Chief Justice. The lawyers’ movement received support from political parties. During this period, Benazir Bhutto was assassinated. In the subsequent elections, the Pakistan People’s Party (PPP) formed a government at the federal level, and Asif Ali Zardari became president. However, Zardari was reluctant to reinstate Justice Iftikhar Chaudhry. Under the leadership of Barrister Aitzaz Ahsan, the lawyers continued their movement.
Nawaz Sharif provided full support to this movement and announced a long march towards Islamabad. As the procession, led by Barrister Aitzaz Ahsan and Nawaz Sharif, reached Gujranwala, Nawaz Sharif received a phone call informing him that Justice Iftikhar Chaudhry was being reinstated. Nawaz Sharif then returned to Lahore. President Asif Zardari, under the advice of the then army chief General Kayani, reinstated Justice Iftikhar Chaudhry.
This marked the beginning of a new era of judicial independence. Justice Iftikhar Chaudhry, through his decisions, effectively established a parallel government, eventually dismissing Prime Minister Yousaf Raza Gilani for contempt of court. Several Chief Justices followed Iftikhar Chaudhry, each making independent decisions, but none pursued the concept of parallel governance. One of these justices, former Chief Justice Tassaduq Jillani, made a significant ruling to protect the rights of minorities, which still has not been fully implemented.
When the Panama scandal involving Nawaz Sharif came before the Supreme Court, Nawaz Sharif was disqualified and sent to prison. For the first time, a Supreme Court judge oversaw the accountability court’s proceedings against Nawaz Sharif. Justices Khosa, Gulzar, and Bandial upheld this approach. However, after Imran Khan’s government was ousted, the Supreme Court under Justice Bandial, along with two high courts, issued rulings that seemed to favor the Pakistan Tehreek-e-Insaf (PTI). During this period, two junior judges from high courts were appointed to the Supreme Court.
The Chief Justice of the Peshawar High Court, Justice Seth, was not promoted. Justice Seth had sentenced former President Pervez Musharraf to death in a case related to the violation of the constitution. The PTI government filed a reference against Chief Justice Qazi Faez Isa with the Supreme Judicial Council, and Islamabad High Court Chief Justice Shaukat Siddiqui was dismissed.
The establishment’s thinking began to change. Under the leadership of Shehbaz Sharif, a coalition government of the Pakistan Democratic Movement (PDM) was formed. During this time, Chief Justice Umar Ata Bandial faced allegations of making decisions in favor of PTI. Justice Bandial excluded senior judge Justice Faez Isa from important cases and formed benches of junior judges to ensure favorable decisions.
After becoming Chief Justice, Qazi Faez Isa allowed certain cases to be broadcast on TV and revoked the stay on the Practice and Procedure Bill, which had reduced the powers of the Chief Justice. A three-member committee, consisting of the Chief Justice and two senior judges, began overseeing the formation of benches. Meanwhile, the Islamabad High Court made significant rulings related to human rights.
Six judges of the Islamabad High Court complained to the Supreme Judicial Council that intelligence agency personnel were tracking them and that a secret camera had even been installed in one judge’s bedroom. The Supreme Court, in an 8-5 ruling, overturned the Election Commission’s decision to declassify PTI as a political party and declare its members as independents. If this decision were implemented, the government would not be able to pass any constitutional amendment.
Currently, Chief Justice Faez Isa has accepted the reduction of his powers in forming benches and delegated this task to a three-member committee. However, during his tenure, this arrangement is now being reversed. The government’s amendment to the Practice and Procedure Act is a clear indication of this reversal. Under Chief Justice Faez Isa’s leadership, the bench had ruled that the committee comprising three senior judges would decide on benches. But after the new amendment, he removed senior judge Justice Muneeb Akhtar from the committee and appointed junior judge Justice Amin as a member.
This is why the government is accused of preparing a constitutional amendment bill at the behest of the establishment. Several provisions of this bill would effectively make the judiciary part of the executive.
Senior professor Saeed Usmani states that the democratic system has become so weak that, in the past, predictions about the government’s fall were tied to changes in the army chief, but now, predictions are being made about the government’s collapse even before the retirement of a Chief Justice and the appointment of a new one. It is unfortunate for this country that previously the executive subdued the judiciary, then the judiciary attempted to dominate the executive, and if all the amendments in the constitutional package are approved, the judiciary will once again become subordinate to the executive.