s this nation approaches its 78th year of independence, where do we stand? A major political leader is in jail. His opponents hold political office. The ‘establishment’ holds power. These are the facts. They are not seriously disputed even by government supporters. The fact that the term ‘establishment’ must be euphemistically used is a testament to the fact that this is the established way of doing things in our country. We are repeating history and yet, expecting different results.

For Pakistan’s Judiciary, the 21st Century has been a troubling journey. It endorsed Musharraf’s takeover in 1999; became assertive as Musharraf’s popularity waned; was emasculated by the 2007 Emergency; thereafter, for a change, stood up for its independence, supported by the civil society and some political forces; re-established its moral and legal authority through the restoration of judges. Following victory, however, it became arrogant and overzealous and encroached upon matters not in its domain.

Pride comes before a fall. Moralising and self-righteous judges deserve a come-uppance. The problem is that in seeking to punish past egregious judicial conduct, the entire institution has been compromised and rendered inconsequential. Both morally and legally. This should be a cause of serious concern, not just for judges and lawyers but for all citizens.

Previous attacks on the constitutional order came in the form of martial law or suspension of the constitutional dispensation. The present assault is in the form of the 26th Amendment to the constitution. A constitutional amendment was visibly procured in public view in October 2024. There was no need for a fresh oath of office for judges or for judicial justifications based on absurd doctrines of necessity. The amendment, on the face of it, undermined judicial independence. It was challenged by various parties on this very ground. Given the nature of the amendment, the Supreme Court had a duty to examine the challenges urgently. More than nine months later, it has yet to do so.

After several years of excessive judicial activism and interference, the pendulum has now swung entirely the other way. Rather than judicial restraint, we are witnessing abdication of judicial responsibility. There is blatant executive interference in judicial appointments and functioning. The judges sit as silent spectators witnessing the slow destruction of their independent functioning. The Executive gets a say in which judges sit in which High Court and which judges hear constitutional cases. A party has been given the right to choose the umpire it is most comfortable with. Any government triumph in such a system is the equivalent of winning a match with your own selected referee. It should give no one any joy as it lacks moral credibility.

The Sindh government took out several ads last month to wish President Zardari a happy birthday. The carefully crafted language praised the president for “constitutional clarity” and for restoring “constitutional balance.” The president was congratulated for reinforcing parliamentary supremacy.

The oath of office the president swore prior to assuming charge does not use the term “parliamentary supremacy.” The president (together with all public office holders and military officers) has sworn an oath to uphold the constitution. That constitution provides for judicial review of legislation. The parliament is not supreme; neither are the judges; or the establishment. There is a separation and balance of power. The balance must be maintained.

Does it matter that the courts have little credibility or moral authority? Some economists argue that institutional strength or democracy is not necessary for economic development. It happens even with authoritarian systems. Sometimes economic development precedes and is a precondition to institutional strength. Others point to the need for restoring balance due to past behaviour. Both arguments are a weak justification rather than a positive endorsement.

A robust and respected dispute resolution mechanism is critical for all societies, particularly diverse societies prone to disputes. Where such a mechanism is not available, the only option is to rely on individuals with the power to make things happen. Where these individuals operate outside their prescribed mandate, there can be no guarantee or security that their successors will endorse their approach. It is this uncertainty that creates additional risk which is a cost mitigated by the rule of law.

Currently, any competent lawyer advising any party (local or foreign) operating in Pakistan has to counsel that there is a genuine risk that contracts will not be enforced; that judicial orders may be defied by the government without consequence; that the Supreme Court has been known to change its mind after a short space of time; and that our courts tend to deliver justice often when it is too late.

During the hearings in the Supreme Court regarding the court martial of civilians earlier this year, the attorney general submitted that Pakistan is a unique nation facing a constant existential crisis. The argument of the government was that faced with this challenge, it is sometimes justified for the Executive (army officers) to act as judge (court martial). Shortly after this, India attacked Pakistan. The Armed Forces responded collectively and decisively in the defence of the nation. They performed their constitutional duty to honestly and faithfully serve Pakistan as required by law. The attorney general’s submissions did not in fact support his case. If this nation is constantly facing an existential threat, it is imperative that its Armed Forces remain solely focused on their constitutional and lawful role to defend the nation.

All forces in our country (political and non-political) must realise the cost to the nation of a compromised and weak judicial branch. It may deliver short term results in accordance with their desires, but at the end of the day it will haunt the nation and inhibit its progress. When the tide of affairs turns, which it always does, there will be no independent judiciary to protect them.

As we approach 78 years of our existence, there should be a pledge to try not to repeat the mistakes of the past; to learn from history and not be imprisoned by it. This will require maturity and leadership from all stakeholders. It will require honest introspection and a collective decision to focus on a better future rather than obsess about a fractured past. When it comes to our country, we are all on the same team. Our joint goal must be to create a stable and better country. Regardless of political or other differences, on August 14, we should all be able to say: Happy Birthday, Pakistan and thank you Mr Jinnah.

The writer is an advocate of the Supreme Court. He can be reached at ahmadhosain@icloud.com.