Also as fair warning to the Commentariat, Flame Threads will be put down and any violator will have fines ranging from mass comment deletion to revocation of Author Rights. Say what you like but tread carefully in how you say it since I did want to write on White Intellectuals hogging the “South Asian” space after Indosaurus’s excellent piece on the Great Gandhi but this just tumbled out)

Pakistan’s Interior Minister, Mohsin Naqvi, told an Islamabad seminar last week that the country’s 80-year-old governance system has “collapsed” and that Pakistan needs new provinces. A day later the DG ISPR called on the parties to consider an “administrative reset.” This week Naqvi assured the press that Shehbaz Sharif will serve his full five years; while standing by every word about the destroyed system, and reprising, for good measure, his claim to the biggest scam in Pakistan’s history: judges, bureaucrats, politicians and bankers, all implicated, an inventory that conspicuously omits one institution. The scam has an address, One Constitution Avenue, a two-decade property saga Naqvi has been prosecuting in public since May; the individuals remain nameless, naturally.

Naqvi is a Husayni Sayyid, the surname is the pedigree, claimed descent from the Tenth Imam, which makes us cousins by caste, and at present the unluckiest good Shia boy in the Islamic Republic: sent out to fly the Deep State’s kite and left to absorb the fire alone.

The PPP demands his resignation; Khawaja Asif suggests he reset his own ministry first; Raza Rabbani reminds everyone that the disease is constitutional violation, not cartography.

A Coup is surplus to requirements

My read: there will be no coup, because the Army no longer needs one.

Since the May ’25 war, a war Naqvi lists among the government’s achievements, “won” and all Asim Munir carries the Field Marshal’s baton under the Twenty-Seventh Amendment: the rank permanent, the immunity lifelong, the command secured to 2030 and extendable. He enjoys a genuine measure of popularity at home and a working line to Trump abroad (though the diplomatic dramatics are not his monopoly; Shehbaz has cultivated that relationship with some skill of his own). An institution in this position does not send tanks to the PTV building. Coups are expensive: they cost legitimacy abroad and deniability at home.

What Rawalpindi has learned is that informal supremacy is fragile and formal seizure is expensive; constitutional guardianship is the durable middle. The Twenty-Seventh Amendment is not a retreat into shadow, quite the opposite: supremacy made juridical, public, permanent.

The Iranian lesson

Iran is the model here not for its theology but for its architecture; a guardian centre embedded in the constitution, an elected state kept on stage to absorb blame and supply legitimacy, power that never again depends on winning anything.

Once the throne is legal, the day-to-day hand can withdraw from view, and in this the Army has a tutor the Pasdaran never had: its own ISI. Authority formalised, operations deniable. Visible power depreciates; hidden power compounds.

Four instruments:

(1.) The constitutional squeeze. New provinces, “administrative resets,” and the six months Naqvi reportedly allowed for the system to be sorted out, which Archer read it as a notice period served on the civilian administration. On deeper reflection it is not a paranoid reading. Redraw the map, dilute the Punjab and Sindh dynasts, all under colour of law. This is a measure I support and wrote on in my Princely piece.

(2.) The cockroach revolt. Naqvi invoked the cockroaches as a warning, not a recipe, the dismissed young uniting to overturn an order that offers them neither merit nor work, and Aijazuddin already has a column on the breeding of them.

Rawalpindi has summoned crowds before, and the Faizabad judgment recorded whose hand was on the tap. A Dhaka-style reset is far easier to encourage than to end, ask Sheikh Hasina, which is why this stays Plan B.

(3.) The Imran card. Only one institution can bring Khan out of Adiala, and it would do so on its own terms but the true objection is not that crowds are unsteerable. It is that Khan may be impossible to domesticate a second time; the card may no longer belong to the hand that holds it. That the establishment can afford to keep him inside, and keep the option open, is itself the measure of its confidence.

(4.) The formal coup. Least likely because least necessary. Why seize what you already hold?

The civilians will comply, because they must. The PML-N and PPP of 2026 are not the mass movements of the 1990s; they are heritage brands with shrinking congregations, and the young have gone to Imran. Parties that cannot win the street need the garrison more than the garrison needs them. Yet it is a bargain, not a surrender: office, patronage and protection from the street flow one way; a lectern, an election and diplomatic cover flow back. The hybrid persists because each side holds what the other lacks. Consent of the weak, convenience of the strong.

Regency, not rupture.

Let a thousand Lotus flowers bloom on Mother Indus; sincerely, and not as the Chairman meant it. (RNJ may keep pining for his desi Deng in the meantime.)

“Pahalgam took place because the PTI anti-military agitation had genuinely shaken the ‘roots’ of Pakistani military’s unquestioned supremacy and popularity domestically. Given Munir’s rapid roll up and consolidation of power, field marshal for life, lifetime immunity, constitutional authority beyond his base tenure, for now the cost-benefit equation even for PakMil does not indicate them risking a round 2. But that calculus can and unfortunately likely will change at some point.”

RNJ’s very incisive comment above is correct on the mechanism but rather conservative on the implication. India still runs Pakistan as a state on the verge of dissolution. However the strategic class has long since moved to “durable but dangerous,” but the public conversation has not caught up.

What Munir has built is not a pause before collapse. It is the consolidation of something more durable, the Prussia of the Ummah, governing through a hybrid in which the boiler vents and the bayonet holds.

Munir’s Compromise

Field marshal for life with constitutional immunity removes the standard succession variable in Pakistani politics. Every previous chief was a hostage to his retirement, every handover a season of conspiracy. Munir has now exited that game. The cost was heavy. PTI agitation in 2023 genuinely shook the army’s domestic legitimacy, the May 9 attacks on cantonments were the most serious internal challenge since 1971, and the suppression has been ugly. But the suppression worked. Imran Khan remains popular and remains in prison. PTI remains the largest party by vote share and remains shut out of power. The constitutional system absorbs the grievance into electoral form, which is to say it diffuses the steam without releasing the pressure.

Factional alignment inside GHQ, the perpetual Punjab-Sindh-KP-Balochistan imbalance, elite exhaustion under chronic fiscal stress, the Baluch insurgency, TTP, all remain live. Munir has fixed the variable he could fix. The others he has merely deferred.

The Raj Continued

The Pakistan Army is the only surviving organ of the British Indian Army that retained its full continental ambitions. The Indian Army inherited the larger share of regiments and the deeper officer corps, but it inherited them under unambiguous civilian control.

Nehruvian India domesticated the army; Pakistan did the opposite, allowing the army to domesticate the state. What looks from outside like military overreach is, in institutional terms, the survival of the Raj’s central administrative organ into the postcolonial period. The Pakistani officer class is the Muslim Anglophile residue: Sandhurst-descended, English-medium, mess silver and regimental traditions, the same professional self-regard.

Jinnah himself, in 1948, wrote to Nehru asking that his South Court mansion on Malabar Hill, a Claude Batley-designed Italianate palazzo of Malad stone and Italian marble built to his exact specifications in 1936, be let only to a European family, so that the house would continue to be properly lived in and admired. The founder of Pakistan named the tenant he wanted for his own home, and the tenant was European.

Pakistan is not a failed Muslim state. It is the British Indian Army with a country attached, and the country is governed on Raj-era assumptions about how an officer class administers natives. The genuine ideological successor to the Imperial & Autocratic Raj on the subcontinent is not India, with its republican constitution and its Hindu majoritarian rewrite, but Pakistan, with its Sandhurst manners and its Punjabi feudal politics. This is why the regime does not feel exotic to Western chanceries; they recognise it from the files.

The Prussian Parallel

The closest historical analogue is not Egypt or Turkey, which are usually offered, but Hohenzollern Prussia in the long nineteenth century. A militarised state with a professional officer caste, an aristocratic landholding class fused to the army, and a foreign policy organised around selling military services to wealthier neighbours. Prussia took Russian subsidies and British coalition payments. Pakistan takes Saudi, Emirati, and Chinese underwriting. The Pakistan Army garrisons Bahrain, trains the Saudi National Guard, and rents out its nuclear umbrella implicitly to Riyadh while conducting exceptional diplomacy with the World-Emperor Elect. This is the mercenary fiscal model Frederick the Great would recognise immediately.

The analogy is heuristic, not total. Pakistan lacks Prussian bureaucratic penetration, Prussian primary education, Prussian industrial discipline. What translates is the military-fiscal layer: the officer caste, the rent extraction, the external underwriting, the militarisation of national identity. That layer alone has produced a state that ran for a century before Wilhelmine adventurism ended it. Pakistan could run on it for decades, provided the army keeps the Wilhelm temptation in check.

Governance Without Liberalism

The hybrid even produces tolerable governance. Not liberal governance, which Pakistan does not have and is not pursuing, but technocratic stabilisation. The post-Imran period delivered lower headline growth, averaging around 2.3 percent versus 3.4 percent under PTI, but in exchange averted sovereign default, brought inflation down from a 38 percent peak in May 2023 to single digits, and let the rupee find a market level. A country that has been to the IMF twenty-three times needs lower volatility more than higher growth. The hybrid delivers exactly that, because the army absorbs the political cost of austerity while a notional civilian face takes the parliamentary blame, while Imran absorbs the popular grievance steam. Three actors, three roles, one system.

Coda: The Kashmir Quietus

Pakistan will quietly let the operational file degrade while blazoning the klaxon loudly. The bleed by a thousand cuts requires a state with nothing to lose; Munir’s Pakistan has a great deal to lose, including Gulf rent, the IMF lifeline, and the domestic settlement itself. But operational de-escalation will coexist with permanent symbolic conflict. Kashmir is identity-producing for the army, not merely strategic, and the army cannot abandon it without abandoning part of why it exists. So the public posture remains maximalist, the Foreign Office invokes UN resolutions, the ISPR performs indignation, and the LoC stays cooler than at any point since the 1990s. The form persists, the substance withdraws.

When Prussistan stops working

We do not write this in triumph. The Prussian model worked until it did not, and it failed for one specific reason: the legitimacy of the army-state rested on the personal authority of the figure at its head, and the moment of succession was the moment of fragility.

Munir is calmed than a future COAS, hungry for the legitimacy bump only an external adventure delivers, could relight the boiler in a week. RNJ’s caveat stands and we second it: the calculus will change at some point. Indian planners should hope Munir lives a long time, and should not mistake stabilisation for friendship. The bayonet has not been put away. It has simply been holstered.

I would like Pakistan to be a secular democracy and give up its ambitions on Kashmir. Badshah

Similarly the core Hindu-Dharmic civilizational nature of India, that is Bharat, is for Indians to decide. Outsiders demanding secularism often mistake their own preferences for universal law.

🧨 The Attack Itself: Pahalgam as a National Trauma

The episode begins by recounting the massacre in Pahalgam, Kashmir—a tourist meadow turned execution ground. Twenty-six people, most of them honeymooning Hindus, were murdered after being identified through religious markers: circumcision, Kalma recitations, names. The hosts don’t shy away from calling it what it is: a targeted Islamist attack. The group responsible, the TRF (The Resistance Front), is introduced as a Lashkar-e-Taiba cutout, designed to launder Pakistan-backed militancy through a local Kashmiri lens.

There is a palpable sense of cumulative fatigue in how the Indian speakers describe it—not as an aberration, but as part of a 30-year continuum of such violence. The emotional register is high, but justified. The use of plain terms like terrorists over euphemisms such as militants or gunmen reflects a long-standing frustration with how such attacks are framed in international discourse.

🤝  Modi, Nawaz, and the Civ-Mil Waltz

The conversation then shifts into a timeline of India-Pakistan diplomatic cycles, particularly under Modi’s tenure. From the 2014 swearing-in invitation to Nawaz Sharif, to Modi’s surprise visit to his family wedding, the podcast tracks how genuine outreach was followed by attacks—Pathankot, Uri, and now Pahalgam.

Omar provides a thoughtful perspective on Nawaz Sharif as a civilian leader who may have sought improved ties, but whose efforts were repeatedly undercut by Pakistan’s military establishment. He outlines the pattern: moments of civilian diplomacy followed by military-backed escalations, followed by internal political retaliation against the civilian leadership. The Memogate, Pathankot, and Panama Papers incidents all return here as nodes in a familiar loop.

🔁 From Kargil to Pulwama: The Strategic Pattern

There’s also a helpful review of the broader history—from Kargil (1999) to the “surgical strikes” post-Uri (2016), and Balakot following Pulwama (2019). The episode makes clear that India’s strategic posture has changed—not only in rhetoric but in willingness to carry out cross-border retaliation. Whether or not these operations are effective is left to interpretation, but what’s underscored is this: India is no longer sticking to the script of strategic restraint.

The discussion also explores how opposition politics within India can undermine or politicize national security issues—how, for instance, some domestic factions have questioned the Balakot strike, or tried to frame past attacks through partisan lenses. There’s a recognition that public trust in state narratives is often fragmented, particularly in a democracy with a complex media ecosystem.

🧱 The Wall: Pakistani Denialism and Indian Disbelief

A major recurring theme is the asymmetry of public discourse between the two nations. Indian frustration seems less about Pakistan’s hostility and more about its deniability—the sense that groups like LeT, JeM, and their affiliates operate with impunity and, worse, with plausible deniability from the state. Pakistani media narratives are described as either suppressive or deflective: dismissing terror groups as “non-state actors,” or framing Indian actions in Balochistan as equivalent provocations.

The contrast is striking: India sees the issue as justice delayed, while Pakistan positions it as parity in grievance. Whether one agrees or not, the result is an emotional and strategic deadlock.

🧭  Why This Podcast Matters

The first 30 minutes of Op Sindoor capture the emotional texture of India-Pakistan relations in a way many formal pieces miss. There is no attempt to force “both-sides-ism,” yet each perspective is given space to breathe. The Indian frustration is raw but rooted in experience. Omar’s contributions offer valuable context on how these dynamics look from the other side, even when the distance seems unbridgeable.

This is not just a conversation about a terror attack. It’s about the structural incapacity for peace, the limits of civilian diplomacy in Pakistan, and the ongoing recalibration of Indian doctrine in response to repeated provocations.

📻 Still Listening…

I’ll share more thoughts on the rest of the episode soon—especially on the Indus Waters Treaty, the expanded airstrikes post-Pahalgam, and the discussion of domestic Pakistani responses. But even in this first third, Op Sindoor is a must-listen for anyone trying to understand why peace in South Asia always seems one funeral too late.

What follows was written by Dr Hussain. 

Societies in general are becoming polarized and Pakistan is no exception. In times when main source of information is tweets, face book posts and a vlog by a youtuber, no one has the time or inclination to try to get information. Everyone picks his own set of facts that fits into his pre-conceived idea.  Facts are not shaping the opinion but it is the other way around where facts are adjusted to one’s opinion.

Judiciary has emerged as an important player in the power play. In the last few months, I have made an attempt to write about the subject that was a new ground for me.  I got educated and enlightened by many well informed folks.  This is first of the three part series on the subject matter.  Only for those interested in the background of unfolding events.

“Neither to laugh; nor cry

Just to understand”        Spinoza

Hamid

Judicial Crisis

 Hamid Hussain

 “The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the Court must also recognize the limits on itself and respect the choices made by the American people.”          U.S. Supreme Court Justice Elena Kagan

 Current judicial crisis of rift among senior judges has deepened the troubles for Pakistan. This is the direct result of the political crisis and ghosts of Supreme Court’s own decisions of the last few years are now coming back to haunt the judicial corridors. Relations between Supreme Court justices deteriorated over time on several issues reaching to a point where justices are not on talking terms with each other.

Pakistan’s power stool has three uneven legs consisting of Chief of Army Staff (COAS), Chief Justice and Prime Minister; the last being the shortest and weakest leg. In his own fiefdom in the Supreme Court, Chief Justice is first among the equals and under current rules he has vast administrative powers to run his institution.  This power has been used by successive Chief Justices to constitute benches in a way to get the desired judicial outcomes.  This practice has become so obvious that even ordinary folks with no knowledge about law can accurately predict the judgement based on the constitution of the bench. The current strength of the Supreme Court is fifteen including the Chief Justice and he is presiding over a house divided with seven justices in each camp.

There is a global trend of extreme political polarization and unresolved political issues are being settled in courts. Judiciary has become the new battle ground and Pakistan army calls it ‘the new frontier’. This Trumpization of politics is visible in United States where $42 million dollars were spent by donors for a non-political position of election of a state supreme court justice in Wisconsin. The reason is that in an equally divided court, the outcome of this race will decide the fate of many important decisions.  Liberals take their cases to the judges of the states of Washington, New York, and California where justices are liberal in their outlook while conservatives take their cases to Texas where justices are conservative. Pakistan’s political crisis has now reached the judicial corridors dividing the highest court.

The causes of polarization in higher judiciary includes disagreements about the process of elevation of judges to the Supreme Court, constitution of benches to hear important cases, use of Suo Moto powers by Chief Justice and two years ago investigation of a sitting justice by his fellow judges on allegation about assets of his wife.

Some very interesting terms are now used when talking about the higher judiciary of Pakistan. The list includes ‘like-minded judges’ where Chief Justice attempts to elevate judges who think like him, and ‘bench fixing’ where Chief Justice forms a bench where majority will ensure the desired outcome.  Justices who may disagree are kept out of important cases.  Even normal routine procedures of releasing detailed judgements in a timely fashion (in some cases this has not been done years after issuing a short order), issuing orders at the conclusion of the proceedings of the day and accurate and timely recording of minutes of meetings were not followed.  This caused embarrassment as some fellow judges argued that the orders didn’t reflect what happened during the meeting. This has severely damaged the credibility of the highest court.

In the Supreme Court, seniority is the holy grail and all-important positions including membership in Supreme Court Council (SJC); a body that disciplines the judges, Judicial Commission (JC); a body that elevates justices to higher courts and even elevation to the post of Chief Justice is based on seniority. The seniority clock starts ticking from the time justice is elevated to the Supreme Court. In one case, a junior judge was elevated before his senior colleague who was elevated later. This made the former judge senior in the Supreme Court and in due time he will become Chief Justice. If he was elevated based on seniority, then he would have retired before opening of the Chief Justice slot.  Chief Justice by a simple trick favored him and it is no surprise that he returned the favor by joining the ‘like-minded club’. The Supreme Court has taken many important cases, but two senior justices were never included in the benches formed by the Chief Justice to hear these cases as they were viewed as belonging to the ‘other camp’. In these circumstances, even if verdict is based on merit, it will lack moral authority.

The Judicial Commission (JC) headed by Chief Justice elevates justices to the Supreme Court and its members include four senior justices of the Supreme Court, one retired justice, one member of the bar, attorney general and law minister. Chief Justice uses his powers in JC to bring his nominees by making deals with the government and the bar. There have been serious allegations of favors where government hiring legal firms of the influential members of the bar and relatives of the judges for its cases. In return, cases being directed to the right benches.

If the Chief Justice does not have the majority, he will not convene the meeting of JC. This resulted in supreme court positions lying vacant for over a year. Last year exercise by the Chief Justice brought a new low to the prestige of the court. He convened the meeting during summer holidays for elevation of five justices as one of the ’like-minded’ members of the JC was retiring in few weeks.  Recommendations of the Chief Justice were vetoed by the majority. Instead of accepting the outcome, he simply rose and left the meeting leaving all in the quandary as to what was the outcome of the meeting? When dissenting members went public, Chief Justice released the audio recording of the meeting to prove his point.  Recording was done without the knowledge of the participants of the meeting.

Chief Justice made a bargain with the government and a few months later came up with a short list of two of his favored justices who were junior (both were rejected in the previous meeting by the majority) while accommodating one judge from the other side. Attorney General and the Law Minister switched their votes, and all three justices were elevated. Recently the Law Minister publicly apologized for doing this and disclosed that then COAS General Qamar Javed Bajwa had intervened in this matter. There are still two vacancies in the Supreme Court, but the Chief Justice has not convened any meeting as now he does not have the majority in JC. If two additional justices are not from the ‘like-minded’ group, then he loses the majority in the court where his rival camp will have nine justices against seven of his own camp.

In the last one year, two major decisions by the Supreme Court sowed the seeds of the current crisis. In April 2022, the Supreme Court reversed the decision of Deputy Speaker of National Assembly of not allowing the no-confidence motion against the government.  This paved the way for passage of a no-confidence motion and collapse of the government headed by Prime Minister Imran Khan. In April 2023, the court took a Suo Moto action forcing the government to hold elections of provincial assembly in Punjab.  Both decisions were necessitated by the refusal of politicians to resolve their differences in parliament or through negotiation outside the parliament. In my view, in both cases, the Supreme Court was correct in intervening.  However, both cases were of such importance and in view of extreme polarization, it would have been better to have the full court decide on both issues.  This would have shown the collective will of the court and less likely to cause intense controversy.

Politicians will try to use courts to get a favorable decision instead of engaging in complex and painful process of negotiation and compromise in the parliament. Sometimes, one political party will win and at other times another, but the court will always lose as its decision will be viewed as politicized. There is also an impression that when judges come under intense criticism for their verdict on a political matter, they try to balance the sheet by deciding some cases in the opposite direction.

The three members of the bench that ordered the current Pakistan Democratic Movement (PDM) coalition government to hold elections in Punjab were also the part of the bench last year that annulled the dissolution order of the previous Pakistan Tehreek-e-Insaaf (PTI) government and forced it to hold no-confidence motion. In April 2022, PDM called the court’s decision as historic and upholding the constitution but calls its current decision as encroachment on parliament’s supremacy and a ‘judicial martial law’. On the other hand, in 2022, PTI called the decision of the same judges a ‘judicial coup’ and suggested that as judges have decided to run the show, it is better to lock the parliament, and everybody go home. Now, PTI is hailing the decision of the same three judges as supremacy of the constitution and vows to stand behind the judges. This should be a sobering moment for the justices.

There was a window of opportunity for reflection for justices, especially Chief Justice. A working relationship with fellow justices to put in place a transparent process of elevation of judges to the Supreme Court, formulation of benches and rules about Suo Moto action. In case of an important issue affecting fundamental rights, the formation of a larger bench, preferably a full court to dispel the impression of bias and avoid controversy. Unfortunately, this course was not taken and hubris on the part of Chief Justice, extreme bitterness, and anger on part of the senior puisne judge and petty personality clashes among justices has set the court on a perilous course.

The result is evident from the fate of a recent bench formed to hear the most important case of constitutional requirement of holding elections within ninety days of dissolution of an assembly that has gripped the nation’s attention. The bench started with nine members but first two members recused then two were removed by Chief Justice to keep his majority (one justice later disclosed that he had not recused, and, in a meeting, it was decided that he would remain on the bench but surprised the next day when his name was not on the bench). Then one member left stating that while sitting on another bench he had ruled that taking up of the current case was not according to the law and lastly another member left stating that fellow members were not consulting him while issuing court orders.  Like an ice block on a hot summer day, the bench melted very quickly and starting with nine members ended up with three members. What moral authority the decision of such a bench will be even if gives its verdict according to the letter and spirit of the constitution?

The Supreme Court crisis has seeped into the legal fraternity and bar councils are also divided.  President of the Supreme Court Bar Association gave a statement in support of Chief Justice, but a rejoinder was issued by most of his executive body members (10 out of 17).  The Punjab Bar Association is divided while bar associations of three smaller provinces have issued statements even calling for the Chief Justice to step down.

Clash among the judges has provided the opportunity for the parliament to claw back some powers from the judges. The amendments passed in the parliament regarding Supreme Court procedures were long overdue and have been a consistent demand of the legal fraternity as well as several justices. However, the timing has made it controversial as the government and Chief Justice are on a collision course.

All power players are keeping a close eye on the events on how a divided court will impact on their positions. PTI wants the current Chief Justice to pressure the government to get early elections.  However, it is happy that the government has legislated amendment to curb the powers of the Chief Justice.  PTI is confident that it will win the next election. There is no love lost between PTI and incoming Chief Justice Qazi Faiz Isa as PTI government had filed a reference against him. Curtailment of powers of the Chief Justice is in their best interest.  The irony is staring in the face of the army. It was not happy with Justice Isa and wanted him out.  Army brass was instrumental in initiating the reference against Isa.  Imran Khan after his ouster distanced himself from this action and threw army brass under the bus publicly stating that it was done by the army. Current army brass is seriously considering the risks in case of return of Imran Khan.  The list includes personal and institutional autonomy, curtailment of army’s powers and foreign policy dilemmas as several countries including Pakistan’s close allies are wary about the return of Khan. Ideal outcome from army’s point of view is at least a five-year quarantine period for Khan and if that is not possible then the army’s hope is that Chief Justice Isa will keep Khan on a tight leash.

Dissent is a norm in the judicial process, but it should be based on a legal argument. Now, it is not about the law, but personal anger is being expressed by the judges in their judgments ornamented with lofty legal jargon. An aberration has emerged in the Supreme Court where dissent by a fellow judge is viewed as a personal insult. Precedents, rules, procedures, and even normal courtesies expected from judges are thrown out of the window to score a point. Chief Justice is heading a deeply divided house where half the judges are in his camp and the other half in the opposing camp. Swords are drawn and when this battle is over the Supreme Court will be gravely wounded in the process and history will not be kind to the justices. Even if Justice Qazi Faiz Isa survives this battle, he will inherit a divided court in September 2023 and his tenure will also be plagued by controversies.

Independence of judiciary was the result of an unprecedented movement launched by the legal fraternity against a military dictator with the full support of general population to ensure rule of law. Unfortunately, judges squandered those gains in petty fights. A lot of soul searching is overdue in the highest court. Once a judge loses moral ground then he simply becomes a caricature with a black robe and a silly wig.

“Judicial abuse occurs when judges substitute their own political views for the law”.    Lamar Smith

Acknowledgement: Author thanks many with in depth knowledge about the workings of the judicial system of Pakistan especially backroom parleys in judicial corridors.  All errors and omissions are the author’s sole responsibility.

28 May 2023

This is second of the three part series on judiciary. Higher judiciary is also being sucked in the crisis and in addition to judges of Supreme Court, now judges of High Courts are also divided. It is now fear of survival that is dictating actions of several judges of the higher judiciary.

Government and the army are using this division for their own ends in the aftermath of 09 May events.  These maneuvers can have serious consequences for the future of independence of judiciary.

Hamid

The Plot Thickens

 “As long as judges tinker with the constitution to ‘do what the people want’, instead of what the document commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically”.

                                              United States Supreme Court Justice Antonin Scalia.

Pakistan’s political crisis has engulfed every institution including the Supreme Court. Judges of the highest court have become controversial due to highly personalized decision-making process, internal conflict among justices and formation of benches of ‘like-minded judges’ to hear political cases. Crisis sometimes also brings new opportunities. Some power brokers are thinking about a move that can re-arrange the whole chessboard. The Supreme Court is divided right in the middle with seven justices on each side. All important positions in the Supreme Court, including the tenure of Chief Justice, are based on seniority. Chief Justice retires at the age of sixty-five.  Based on current practice, we know the list of Chief Justices for the next decade.

Chief Justice presiding over benches of ‘like-minded judges’ is viewed by opposition political party Pakistan Tehreek-e-Insaaf (PTI) as sympathetic to their cause of early election while government views him hostile.  The court can force the government for early elections before the retirement of Chief Justice Umar Atta Bandyal on 16 September 2022.  PTI is confident that it will win the next election with possibly two third majority that will give it the power to even amend the constitution. Here a mutually beneficial arrangement comes into play. Chief Justice can give a decision that helps PTI and brings it to power.  PTI can return the favor by making the position of Chief Justice based on three years tenure like the position of Chief of Army Staff (COAS) and not based on compulsory retirement based on age.  This will change the whole landscape of the Supreme Court.

Five senior most justices of the court who will become Chief Justice based on current rules include Qazi Faiz Isa (17 September 2023 – 27 October 2024), Ijaz ul Ehsan (28 October 2024 – 05 August 2025), Syed Masoor Ali Shah (06 August 2025 – 27 November 2027), Munib Akhtar (28 November 2027 – 13 December 2028) and Yahya Afridi (14 December 2028 – 22 January 2030). Of these justices, Ijaz and Munib are in Bandyal’s camp while Qazi Isa, Mansoor and Yahya are in the opposing camp. If the three years tenure rule is legislated, then all the justices in Bandyal’s camp including himself are beneficiaries while the three justices in the opposing camp will be out of the race for the top slot.

Bandyal became Chief Justice on 02 February 2022 and will be retiring on 16 September 2023.  If his tenure is now fixed at three years, then he will retire on 01 February 2025.  During this time, Qazi Isa will retire on 27 October 2024 before the top slot opens.  Now, Ijaz as senior most justice will become Chief Justice retiring on 30 January 2028 instead of 05 August 2025 enjoying a three year rather than a ten-month tenure as Chief Justice.  During this time Mansoor will retire on 27 November 2027, two months before the opening of the top slot.  Now, the senior most justice Muneeb will become Chief Justice on 31 January 2028 enjoying a three-year tenure rather than retiring after an eleven-month tenure.  During Muneeb’s tenure, Yahya Afridi will retire on 22 January 2030.  So, with one stroke Bandyal, Ijaz and Muneeb will enjoy long tenures while three justices in the opposing camp will be knocked out of the race.

This is a very high-risk gamble.  PTI has an interest in pursuing this course.  Currently, there is deep mistrust and anger between Imran Khan and the army brass. If Khan comes to power with a significant majority, then there will be very little room for maneuver for the army.  The only restraining element to his rule will be the Chief Justice. The PTI government had humiliated Justice Qazi Faiz Isa by filing a reference against him and Isa neither forgets nor forgives. After ouster, Khan tried to distance himself from the reference, blaming it on the army but Qazi Isa is an unexploded ordnance on the road.  If the court is under the charge of a known entity like Bandyal then PTI may feel more comfortable.  However, there is no guarantee that PTI when it comes to power will go that route.

If this trick is attempted at this stage, there will be revolt in the Supreme Court and rival justices will retaliate.  In 1997, Chief Justice Syed Sajjad Ali Shah also faced a revolt in his court and was finally ousted by his fellow judges. The Shah was handicapped as most brother judges revolted against him while Bandyal’s position is much stronger as he has half the court circling the wagons. Still, he is carefully watching his flanks. He has not taken any vacation or an overseas trip as this will make senior puisne judge Qazi Isa acting Chief Justice and, in that position, he can pull a ‘judicial rabbit’ from his hat.

Legal fraternity is also deeply divided but most of country’s bar councils have criticized modus operandi of the Chief Justice.  There will be pushback from the legal fraternity that will paralyze the judicial system of the country. Senior lawyers especially from smaller provinces have privately communicated that this will be the red line.

In view of highly polarized discourse affecting every institution, even good ideas become controversial. The concept of three years tenure for Chief Justice is the right approach. The current system of elevation based only on seniority and compulsory retirement at the age of sixty-five years has created many anomalies. There have been cases where Chief Justices of Supreme Court and High Courts served only for few months and in some cases, their tenure was counted in days.  Chief Justice S. A. Rahman served for 94 days, Rana Baghwandas 87 days, Bashir Jehangiri 24 days and Jawad Khwaja 23 days.  Recently, an absurd situation happened at Peshawar High Court where one Chief Justice served only for one day before reaching the retirement age as his predecessor retired only a day earlier.  His successor, the current Chief Justice of Peshawar High Court will serve only for four months.

The current system looks like the musical chairs for the justices that is costing the system. Judges get a very lucrative retirement benefit package in addition to the pension. A Supreme Court Judge on retirement is entitled to following benefits:

• Service of a driver and an orderly.
• Deployment of one security guard at the retired judge’s residence by the police round the clock.
• 3000 free local telephone calls per month.
• 2000 units for electricity.
• 25 hm3 of gas per month and free supply of water.
• 300 liters of petrol per month.
• Entitled to purchase of official vehicle in their use on their retirement at depreciated value.

All the above benefits entitled to a retired judge are free of income tax and after his death, his widow is entitled to same benefits.

Of the last twelve Chief Justices of the Supreme Court of Pakistan including the incumbent, only three had a tenure of over two years.  In the next eight years, there will be seven Chief Justices and only one will serve for more than two years. If a Chief Justice is serving for an average of one year, and more justices are added to the court on frequent retirements, it adds enormous costs to the national exchequer on a continual basis. This exercise is not sustainable in the long run in a country facing serious economic challenges. At some point, there needs to be a dialogue on this issue within the legal fraternity and among judges for the future course.

“We can never be gods, after all; but we can become something less than human with frightening ease.”         N.K. Jemisin, The Hundred Thousand Kingdoms

Hamid Hussain

coeusconsultant@optonline.net

03 May 2023

Another BP Podcast is up. You can listen on Libsyn, Apple, Spotify, and Stitcher (and a variety of other platforms). Probably the easiest way to keep up the podcast since we don’t have a regular schedule is to subscribe to one of the links above!

In this episode, Omar talks to Ambassador Kamran Shafi and Columnist Dr Mohammed Taqi about the current political crisis in Pakistan. We take our best guess on whether the army is falling apart or just having a hiccup.

Some background:

1. NFP (nationalist-leftist columnist from Karachi) writes a pretty good summary of the Imran Khan experiment and how it fell apart. https://www.dawn.com/news/1719266/smokers-corner-the-self-destruction-of-imran-khan
2. Former ISI chief Asad Durrani writes about the failure of Project Imran: https://timesofindia.indiatimes.com/world/pakistan/the-army-took-a-back-seat-because-its-project-imran-khan-bombed-says-former-isi-chief-asad-durrani/articleshow/95305574.cms
3. Mainstream Pakistani nationalist Mosharref Zaidi writes on this topic: https://www.thenews.com.pk/print/1007665-november-29-and-pakistan-s-polycrisis

it is worth noting that I could not find a single recent good article by a pro-khan columnist. That is not his style. He has a simple message, and no details and no plan.

From Dr Hamid Hussain

General Qamar Javed Bajwa

Of Monsters And Genies

By Lt. Gen (r) Asad Durrani

The Pakistan Army – we may like or lament – does have a unique status in the Country’s polity. As an institution, it has known its limitations in politics, but every now and then, we get a junta that crosses the redline in the naïve belief that the state was created by the Almighty to serve as a lab, and the khaki leadership had divine sanction to experiment to its heart’s content. One catalyst that all these scientists found useful was a civilian façade to cover their flanks and to do the heavy lifting. In vernacular this exercise is called political engineering – and it has bombed always and every time. Nevertheless, true to his DNA, the man on the horseback would rather follow a warrior King, Bruce of Scotland, famously inspired by a spider to try and try again; rather than Einstein, the best of the innovators, who warned against repeating the same recipe and expecting a different outcome.

In the summers of 2018, I was in-and-out of GHQ for a number of unsavoury reasons. But like all the earlier calamities, this one too turned out to be entirely to my benefit. Suspecting that the incumbent brass, like some of its predecessors, was looking for a frontman in Mufti, I pleaded with an important aide of the Engineer-in-Chief to step back since it had never worked in the past. His response left me speechless: “sir we’re going to clean up the country”. I will get hold of him one of these days to convey my compliments—yes it has been swept clean but not exactly the way the men at the helm had in mind. Imran Khan did not turn out to be the broom they hoped he would be.

There is a long list of personal observations and empirical data to show that the man was a megalomaniac – more importantly someone who was seeking a camouflaged parachute to land on the throne. Many a military leader had refused to bite the bait, but four years ago the conman broke through. Whatever happened thereafter is recent history, but an odd development must have taken even his detractors by surprise: IK has won over a good number of fans; educated but impervious to all logic and reason. Most of its members used to vilify him when he was in power, but after his ouster, remorsefully ruminate about the bad old days.

Imran’s credentials for the country’s premiership were built upon two arguments. He brought the 1992 cricket world cup to Pakistan, but one conveniently forgot that he had a great team, whom Imran ignored to thank in his victory speech. And yes, he did raise funds for the cancer hospital in Lahore, for which he was generously helped by Nusrat Fateh Ali Khan, an iconic artist of international fame, who performed pro bono on a global circuit. After he passed away, Imran bragged that it was he who had introduced the Great Maestro to the world.

As if falling short on some important leadership criteria – taking blame in case of failure and sharing credit in success– was not bad enough, IK invented a disingenuous rule: to be a leader one should be able go back on one’s commitment; and he remained unflinchingly loyal to this devious principle. Worse still, he was spectacularly consistent on non-delivery in all fields of public good. Combating corruption was his leitmotif. Under his watch, Pakistan fell further on the scale. On some fanciful issues too, his record was perfect. No one asked him for an NRO (relief for any misdeeds), but he kept reiterating that he would not give any. He didn’t catch a single thief, but persisted with his resolve not to let anyone escape.

It was thus no surprise when he said “absolutely not” when asked if Pakistan might provide any military bases to the US to resume bombing Afghanistan – even though no one ever demanded them. Answering hypothetical questions was never a good idea but it was still more convenient than addressing the more substantial ones. True to his character, he pampered himself by claiming that he was such a great threat to the American designs that the sole-superpower was hell bent to see his back. Changing regimes is a favourite pastime of the Blob, but it never reveals its nefarious designs through diplomatic channels – which are essentially to posture and not to transmit a policy.

But where IK actually outdid himself was when he expressed his displeasure with the Army for going into the neutral gear, and postulating that only the animals would sit on the fence. Wrong, all the subhuman species are in fact more passionately committed than the mankind. The real cause for his disappointment with the uniformed clan was that after launching him into the corridors of power, it did not jump when he whistled. And then he completely exposed his perfidy by blaming the courts for keeping a round the clock vigil when his party was blatantly violating the constitution.

Indeed, the assemblies should not be dissolved when they’re in business. President Ghulam Ishaq Khan was asked why he was not responding to Benazir Bhutto’s request to call the National Assembly to session! Since he had already decided to sack the government and send the assemblies packing, he was not going to do so when the country’s highest forum was conducting affairs of the state. Dissolving it when a no-confidence motion had been tabled would have been an act of profanity. And therefore, one understood why the PTI wanted the courts to remain in limbo.

But none of the above would make any dent in his loyal following that believes they have found a Messiah and is prepared to follow him to the bottom of the abyss. Look how in unison they’re clamoring for fresh elections – an option they considered absurd only a few months back.

Hardly anyone can predict the outcome of elections in Pakistan. Based on the best available assessment Yahya Khan agreed to hold them in 1970. He had been assured that a hung parliament, which would let the military strongman continue ruling the roost, was the most likely outcome. The result was that he was left with no country to rule. In the elections of 1988, the agencies forecast went wrong in all respects except for the end count. In the present environment if the results would depend upon the size of the crowd on the street or the number not on Twitter but did turn out to vote, I have no idea. But the demand for early elections does serve one purpose – it deprives the successor government the time to stem the rot.
I
n the meantime, there is an urgent need to address a more serious problem.

Military’s installed regimes are often described as a hybrid between the uniform and the civvies. The first recorded case, even though in fictional form, of a cross breed was the Frankenstein’s Monster. It devoured its creator*. Understandably, IK like many of his predecessors is now raring to consume his Godfather. The problem this time around is however a tad more serious. Because of the spell of insanity, he has cast, IK was more like a genie that has come out of the bottle. Anyone knows how to put him back!

*The famous Urdu poet, Pandit Brij Narayan Chakbast had warned us against tinkering with the laws of nature:

zindagī kyā hai anāsir meñ zuhūr-e-tartīb maut kyā hai inhīñ ajzā kā pareshāñ honā (Life is about order in the elements – when they go haywire, we die)