As Justice Munir stood before the Lahore High Court Bar, he had a spate of cases to defend, though he wasn’t particularly good at it. His point was this: when you have revolutions knocking at the doorstep, you must never open the door for “that would mean legal recognition of a revolution”; the voice ranked of false honesty.

So, what would he have us do instead. Like him, one is to crack open a sieve via crass judgments while making sure to look away as regimes might enter kicking through the door, just so, that one’s character remains untarnished.

But today Justice Munir gets only tarnish and disrepute because whatever gymnastics one may pull, however lengthy one writes, and however clever one pretends to be, the truth of acquiesce in whatever shape or form can never be denied.

And yet, maybe, Munir knew all this. For through out the speech he kept asking one question, had we issued writs “who was to enforce them and was the Court itself in a position to punish the contempt…”, and he had to say no more, for while judges through out our history, scorned Munir, they were happy to copy from his play book.

In a note that had been written in March but was only uploaded on the Supreme Court web page on November 26th, Justice Mansoor Ali Shah speaks of “Transitional Justice” which involves “uncovering the crimes of former authoritarian rulers and holding them accountable for past human rights violations, including unlawful detentions, imprisonments and politically motivated trials.” The case was the advisory opinion on Zulfiqar Ali Bhutto’s trial being declared as “Judicial Murder”.

Per the judge, such justice is to be respected because, “by revisiting and rendering opinions on the fairness and legitimacy of such decisions, the Court delivers justice to affected individuals and sends a powerful message: judicial complicity with authoritarianism will not be shielded from scrutiny”.

Surely transitional justice holds some merit. At its core it represents a dislike for statis, and a humility to learn from and remedy our mistakes. But the problem is, that we make too many mistakes in too short a time, so much so, that the mistakes tend to feel deliberate and the remedying, mere trickery.

When the revolution is at your door, and you know that it will push through any way, you either acquiesce, or pull a Justice Munir (the original), or a trick along the same lines—sit through the revolutionary regime’s roller coaster and as you get breathing space, cry hoarse the bard of illegitimacy and treason.

The judges post Munir have mastered the third to perfection. Consider history. In Asma Jillani, the court used the famous phrases “foul breath” and “smeared pen” for General Yahya, after he had given up power. The principle in the case read like a manifesto: “as soon as the first opportunity arises, when the coercive apparatus falls from the hands of the usurper, he should be tried for high treason and suitably punished [as] this alone will serve as a deterrent to would-be adventurers”.

The wholly inaccuracy of the expectation aside, later judges followed along this mantra religiously, with or without recognizing it falsehood. For it is a false promise, that makes one put in false hope, on a premise that is even more false.

Delayed, read, (transitional) justice never has, never will, stop a dictator. Asma Jillani did not stop General Zia or later, General Musharraf.

And the falsity isn’t just in transitional justice’s lack of impact; its also in the variant of it that we have adopted. Our mighty verdicts wait for aggressors to either die or leave for London. The cases against Musharraf that Justice Shah cites as emblematic of grace are all from the year 2024. And in the times when the dictators do not leave, these verdicts sit for implementation.

This is not only in testy times as a conventional model for transitional justice would have us believe. The indictment of army and intelligence generals by name in Asghar Khan vs. Aslam Beg was during a civilian tenure, yet it has not been implemented to date. One legal eagle asked in an opinion elsewhere, “Seven years since the verdict, a single question arises: if Asghar Khan won, why didn’t Aslam Beg lose?”; it’s been five years since its feature.

So then, there is the big bluff, our verdicts of supposed transitional justice can at max be declaratory; they never have and never will carry executable directives. And to test this bluff, one need not go to the extremes of demanding hanging at D-Chowk; anything that demands action suffices.

So, when the note says that “the essence of judicial independence is not found in passivity or retrospective correction but in resisting authoritarian overreach at the time it occurs [and] that Transitional justice, while important, should serve as a sobering reminder to judges: justice delayed by decades is justice diminished”, we must go a step further. For us, what comes in transition is not justice at all; its injustice covered in big words and longer paragraphs.

Today, our problem is graver and more complex. It is no longer about authoritarian regimes, it’s about our ordinary civilian (if this is the proper word) governments. Our politicians are habituated to either sit through jail (with or without trial) or wait abroad in search for the moment when they get catapulted to power, just so, that they can come out in the open, waive off all charges against them, negate judgments and feel free of indictments and till the time they remain in power, require judgments off judges that read like executive edicts.

So, knowing this, the choice for the judge of today is either to author brave words, or to comply, and this isn’t different from the choice that their forebears faced. The unique thing about today, however, is that public conscience is also on stake. The dictators could easily be painted in black and white; the regimes of today sit in a thick grey, and the public either doesn’t know the truth about them or has stopped caring. And there can be no doubt that when “[liberty] dies [from the hearts of men and women]…, no constitution, no law, no court can even do much to help it”.

Will the judges of today keep pulling new tricks or close the playbook once and for all? We can only adopt Justice Shah’s words with modification:

“Judges serving under authoritarian [all] regimes must remember that their true strength lies not in holding office but in steadfastly upholding their independence and principles.”

Ali Hassan
The writer is a law student at Lahore University of Management Sciences.