Chief Justice Muhammad Munir, in his farewell address to the Lahore High Court Bar, found himself in an introspective mood. Remembered as both a consequential and controversial figure in the judiciary (though there are some strong contenders in recent years), the former chief, in his adieu, made a few statements that have left posterity endlessly pondering “what if” scenarios.

To quote a small excerpt from his farewell address, where he comments on his legal decisions—ranging from validating the dissolution of the first Constituent Assembly to dubbing a palace coup as a “successful revolution”—he said that if he had decided otherwise in these cases, “I am quite sure that there would have been chaos in the country.”

According to him, his decisions would not have been of any help to the dying democracy in the country. The might of the anti-democratic forces was bulldozing everything in its path, leaving him no choice but to jump on the same bandwagon to save himself and his institution.

While general readers may consider these statements mere passing references to previous events, legal pundits fixate on the stunted growth of Pakistan’s democracy and attribute it to such judicial lacunae from the past: “Our decisions may not be respected and could lose their primary purpose of execution, so better not push it too far.”

Legal academics and experts regard such compromises as a bane to ever achieving a functioning democracy. They dream of a scenario where, had the Supreme Court invalidated anti-democratic actions in landmark cases such as Tameezuddin and Dosso, the state would have retained its democratic nature. The separation of powers among state institutions would have been strengthened. The Supreme Court, in its complete majesty, would have sat at the helm, deciding what the Constitution and law were from then onwards.

Only if wishes were horses, these hypothetical scenarios might have carried us straight to a perfect democracy. But, as with wishes, they remain far removed from the complex realities of life. Fast forward to the year 2024. We saw glimpses of a different judiciary. We saw an apex court mandating elections within 90 days, as per the specific commandments of the Constitution. We saw it doing so while paying little heed to external pressures. We also saw it declaring military trials of civilians as unconstitutional.

Amidst external pressures, we saw the Supreme Court rise above internal strife—shifting from the Chief Justice being the “master of the roster” to delegating the power to form benches to a committee of the three most senior judges.

Then came the climax: a full court convening on the reserved seats dilemma, with a majority of eight judges deciding against the ruling coalition and awarding the seats to the opposition. These developments were celebrated as the burial of the mischievous doctrine of “necessity.” Wrongs committed in the past seemed to have been rectified. Little did we realise that the wrongs were never theirs to begin with. We celebrated moving on from “necessity” while continuing to live under its shadow, albeit unnamed. These decisions only triggered a pushback: the Practice and Procedure Ordinance rejuvenated the dead “master of the roster” debate. The ordinance was followed by an extraordinarily rushed 26th Constitutional Amendment—taking us back to pre-18th Amendment times, where excessive political manoeuvring in judicial appointments was the norm.

Across the democratic world, one rarely finds examples of such onslaughts among state organs. While many countries experience disagreements among state institutions, it seldom comes at the cost of bringing down the entire constitutional framework.

The Bush versus Al Gore election, and the subsequent court decision, brought the United States close to such a juncture. However, despite many finding the US Supreme Court’s decision absurd, Al Gore (the presidential candidate) graciously conceded defeat, stating: “While I strongly disagree with the court’s decision, I accept it.”

Acceptance is the magic word that keeps democracies functioning. No judiciary, on its own, is responsible for a country being more or less democratic. Their rulings exude power only if they are, in the end, accepted by the other state organs despite differences and disagreements.

The powers that be must realise this before it is too late. Otherwise, we risk circling back to older times and descending into ‘chaos,’ as presciently pointed out by milord CJ Munir.

Malik Ahmed Hasan
The writer is a student of law at the Lahore University for Management Sciences (LUMS).