Supreme Court's Justice Mansoor Ali Shah has observed that judges' strength lies in steadfastly upholding their independence and principles.
He also hinted that he had accepted the loss of his long-expected promotion as the chief justice of Pakistan, which did not come to pass after the 26th Constitutional Amendment was passed, that losing a position was a small sacrifice compared to compromising one's integrity or leaving behind a legacy of submission or compromise.
"Judges serving under authoritarian regimes must remember that their true strength lies not in holding office but in steadfastly upholding their independence and principles," observed Justice Shah.
He made these observations in a six-page additional note in the famous Bhutto reference case. The note comes over eight months after the principal verdict in the case was issued by former chief justice of Pakistan Qazi Faez Isa in March.
Justice Shah referred to Justice Dorab Patel, who exemplified this ideal when he courageously dissented from the original Bhutto case, acquitting Bhutto of the charges.
The senior puisne judge observed that Justice Patel had later refused to take the oath under the Provisional Constitutional Order (PCO) promulgated by General Ziaul Haq as he established his dictatorship. Thereby, he relinquished his impending eight-year tenure as Chief Justice of Pakistan.
"His (Justice Patel) actions remind us that losing a position is a small sacrifice compared to compromising one's integrity or leaving behind a legacy of submission or compromise."
Justice Shah further maintained that judges must always bear in mind that a judge's valour is measured by his courage to resist external pressures, stand firm against interference and safeguard the independence of the judiciary without fear
or favour.
"Delay in confronting authoritarian inroads can prove fatal to the rule of law — such incursions must be resisted and rectified immediately, for the judiciary's role is to defend justice, not enable its erosion," Justice Shah observed, adding that the independence of the judiciary is the cornerstone of justice, and its true test lies in a judge's ability to stand firm under authoritarian regimes.
"The essence of judicial independence is not found in passivity or retrospective correction but in resisting authoritarian overreach at the time it occurs."
He said that, while important, transitional justice should serve as a sobering reminder to judges: justice delayed by decades is diminished.
"Judges must act as the first and last line of defence for the rule of law, refusing to compromise even under duress, so that societies do not have to rely on transitional processes to correct the damage inflicted by judicial capitulation."
'The legal process is not employed to ensure justice or to minimise errors, rather to discredit and punish political opponents'
Justice Shah noted that the lesson of transitional justice must be clear: judges must uphold their oaths with courage in the face of oppression, for only then can the judiciary truly safeguard democracy and the rights of the people."
Transitional justice, however, often becomes necessary because, during oppressive regimes, some judges fail to uphold their constitutional duty, succumbing to the pressure of illegitimate authority, said Justice Shah.
"This failure not only enables violations of due process and fair trial rights but also erodes public trust in the judiciary."
Regarding trials of political cases, Justice Shah observed that the legal process is not employed to ensure justice or to minimise errors but rather to discredit and punish political opponents.
"These trials often rely heavily on statements obtained during investigations from former allies or associates of the accused, who may be coerced or induced to turn against the accused," he said.
"Such evidence, which would usually hold limited weight in a fair trial, becomes a convenient basis for conviction in a political trial, supporting the alleged criminality of the accused."
Justice Shah observed that these trials frequently violate due process and fair trial requirements to produce politically desirable outcomes.
In a critical observation, Justice Shah further added that the Constitution and the law provide no mechanism to set aside the judgment by which Bhutto was convicted and sentenced, "as that judgment attained finality following the dismissal of the review petition by this court".
"Furthermore, in its advisory jurisdiction under Article 186 of the Constitution, this court lacks the authority to reappraise the evidence or overturn a final decision," he observed, adding, "However, after carefully examining the record of the reinvestigation and trial proceedings, we concluded — and so stated — that the trial proceedings in the Lahore High Court and the appellate proceedings in the Supreme Court of Pakistan did not meet the requirements of the fundamental right to a fair trial and due process as enshrined in Articles 4 and 9 of the Constitution, which were later reinforced as a separate and independent Fundamental Right under Article 10A of the Constitution."
Justice Shah said that the top court's expression of this opinion reflects a commitment to confront past missteps and fallibilities during an authoritarian regime with humility, embodying a spirit of self-accountability and underscoring the top court's dedication to ensuring that transitional justice shall be served with unwavering integrity and fidelity to the Constitution and the law.
He concluded his note using Bhutto's words: "An independent judiciary is the antithesis of martial law. An independent judiciary can only function under the umbrella of the Constitution and not under the shadow of the gun … An independent judiciary exists side by side with an executive chosen by the people and a legislature elected by them. But the people's executive is in jail. The assemblies … have become as silent as the graveyards. Can one flower flourish in a garden turned into a desert?"