Judiciary must confront authoritarianism without delay, says Justice Shah

• Emphasises SC’s correction of historical injustices in Zulfikar Ali Bhutto case
• Says judiciary’s resilience rooted in courage of judges who refuse to compromise

ISLAMABAD: Justice Syed Mansoor Ali Shah, a senior puisne judge of the Supreme Court, observed on Tuesday that the judiciary was a resilient institution endowed with the remarkable ability to recover and rise above the shadows of authoritarianism.

“This resilience is not accidental but is deeply rooted in the courage and integrity of those judges who refuse to compromise and have the courage to speak truth to power,” observed Justice Shah in a six-page note he issued on the presidential reference in the murder trial of the late prime minister Zulfikar Ali Bhutto.

Justice Shah observed in his note that in the annals of judicial history, there were turning points when the judiciary was bold enough to confront its past mistakes and chart a course for a better future.

Explaining further, Justice Shah said that Mr Bhutto’s trial is a classic example of a political trial, illustrating how such trials can be manipulated to advance authoritarian designs.

Mr Bhutto’s trial effectively served as a potent and notorious “judicial tool” for strengthening Gen Zia’s authoritarian regime, aimed at suppressing political resistance, eliminating opposition and ensuring the consolidation of power.

It helped to entrench the repressive military authoritarian regime under which it was conducted, Justice Shah said.

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 note observed, adding that the essence of judicial independence was not found in passivity or retrospective correction but in resisting authoritarian overreach at the time it occurs.

Transitional justice, while important, should serve as a sobering reminder to judges: justice delayed by decades is justice diminished, Justice Shah observed, adding that 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.

Let the lesson of transitional justice 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, Justice Shah emphasised.

Judges serving under authoritarian regimes must remember that their true strength lies not in holding office but in steadfastly upholding their independence and principles, Justice Shah observed.

He cited the example of Justice Dorab Patel, who courageously dissented in the Bhutto case, acquitting the former premier of the charges, and later refused to take oath under the Provisional Constitutional Order (PCO) promulgated by Gen Zia, thereby relinquishing his impending eight-year tenure as CJP.

Justice Patel’s 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 said.

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, he said.

“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,” he said.

Published in Dawn, November 27th, 2024