Equally unprecedented is the creeping politicization of judiciary and judicialization of politics since the Lawyers Movement in 2009 restored the writ of rebellious judges led by Iftikhar Mohammad Chaudhry. Until then, no judge had stood his ground when confronted with the brute power of the Miltablishment or a vindictive “popular” civilian leader. Most happily became handmaidens to terrible miscarriages of law and constitution or salved their conscience by delivering judgments after the event or dictator had passed. Still, it required a “mad man” like Iftikhar Mohammad Chaudhry to defy the odds and light a prairie fire that that eventually ousted a military dictator.
But that “freedom” has been sacrificed subsequently at the altar of personal ambition, cowardice or corruption. Chief Justices of Pakistan like Saqib Nisar and Asif Khosa were like putty in the hands of the Miltablishment, emboldening it to stretch its crush over the institution like an octopus. Others tried to walk the balancing act on a wink and nod. The politicization of the judiciary in the last four years was abetted by the fact that the judiciary as an urban, middle class institution, like the military, was inclined to support the popular narrative of Imran Khan against the two-party status quo and therefore did not give much respite to the opposition when Khan and Miltablishment were both on the warpath against it. The social media is replete with instances of naked bias -- whether in writing the constitution to grant another term to an army chief, or in regularizing Imran Khan’s Bani Gala property, or in giving relief to Khan for seven years in the PTI prohibited funding case, or in refusing to hold Khan guilty for violating his “Sadiq and Ameen oath, etc., -- but the culpable judges have brushed it away self-righteously.
Now we have entered into another unprecedented stage in our political evolution, namely the judicialization of politics. This began when Khan’s routine trampling of law and constitution was no longer supported by the Miltablishment in late 2021 and the judiciary was quick to accept that power flows from the barrel of a gun backed by intelligence of high and low misdemeanors by judges that could be used to blackmail them effectively (as in the case of the ex-Chairman of NAB). Thus, in an unprecedented manner, the Supreme Court and Islamabad High Court were “opened up” to thwart Khan as he sought to defy the Miltablishment. Subsequently, this opened the route for the opposition to successfully challenge Khan’s political decisions (long march, etc), compelling him to plead with the judges to shun “neutrality” and side with him. We have now arrived at a stage when both sides are petitioning the judges to take political sides or adjudge matters based on “ground realities” rather than law and constitution. The retrospective cancellation of the votes of the 25 dissenting members of the PTI is a prime example of such unconstitutional intervention on the basis of “morality” no less than the “compromise” solution afforded by the judges to allow Hamza Sharif to remain CM Punjab while giving time to the absenting PTI members to be present until a fresh election for CM Punjab can be held after July 17. The extraordinary fact is that the judges have now ordered Hamza Sharif, Imran Khan and Pervez Elahi to huddle and arrive at this “out of court” solution.
Under the developing circumstances, we should not be surprised to see the developing nexus between the Judiciary and Miltablishment forcefully extended into the future. This will be a true measure of the hybrid nature of future civilian regimes rather than just the relationship between the civilian rulers and the Miltablishment. In the old sociological formulations of class and state in Pakistan, the judiciary was billed as a handmaiden of the executive where the executive authority lay with post-colonial elected civilian regimes. Now that executive authority has shifted rather brutally and openly to the Miltablishment, the judiciary is fast becoming a handmaiden to it. Power will no longer be exercised by a Miltablishment threatening martial law if the elected civilian rulers do not bend but by the unaccountable judiciary threatening to undo their decisions at the behest of the Miltablishment.
Welcome to the New Pakistan in which the term Miltablishment will not refer to the old military establishment but to the new judicial-military nexus in “deep” state and “open” society in which the Generals will rule indirectly with the direct assistance of Judges.