ISLAMABAD:
Former Supreme Court judge Athar Minallah has said that when the executive abdicates its fiduciary duty towards those in custody, judicial intervention is not activism but a constitutional obligation.
Speaking at Harvard Law School, Justice (retd) Minallah said the true test of judicial independence lies not in speeches or rhetoric but in whether the powerless trust that courts will protect them when their rights are violated.
Reflecting on his tenure and the institutional struggles faced by the judiciary, he said courts must stand as guardians of the voiceless even when doing so requires confronting entrenched centres of power.
Justice (retd) Minallah recalled that when he was elevated to the Islamabad High Court (IHC), the institution was still evolving and operating within a difficult constitutional environment.
“When I was elevated to the Islamabad High Court, it was not yet a fully consolidated institution. Though vested with extraordinary constitutional authority to issue the great writs — certiorari, mandamus, prohibition, quo warranto and habeas corpus — its independence had yet to be secured in practice. We functioned within a hybrid authoritarian constitutional culture, where power did not rest on constitutional supremacy but on the unchecked will of the powerful elite. Serving the voiceless was perilous and guarding them was deliberate defiance.”
He said building judicial independence required deliberate effort and courage from judges willing to uphold constitutional values despite pressure.
“Judges of integrity had to be identified and persuaded to accept elevation despite resistance from entrenched centres of power. Independence was not inheritedit was constructed. Those who took the oath proved fearless. Some would later pay a price for that independence. Institutional courage, we learned, is both powerful and fragile.”
Justice (retd) Minallah stressed that judicial independence should ultimately be judged by whether the courts inspire trust among society’s most vulnerable.
“The true measure of judicial independence lies not in rhetoric but in whether the powerless believe the court will protect them when wronged. And the powerless came.”
He also reflected on the evolving scope of constitutional rights, arguing that legal systems must reconsider their relationship with the natural world and the broader concept of life.
“When we speak of rights, we think of humans. Our Constitution, our laws, our struggles — all centre on the human condition. But does the law hear only the powerful human voice, or also the silent pulse of life beyond us? If dignity and the right to exist are inherent to life itself, can constitutional compassion stop at our own species.”
Addressing the global climate crisis, he said the idea of climate justice risks becoming empty rhetoric unless legal systems recognise the intrinsic value of life.
“Climate justice has emerged as a recurring theme in global summits and policy forums. Yet for many victims, it remains little more than rhetoric — words spoken in halls of power while devastation unfolds in silence. The remedy begins with a simple but transformative recognition: life possesses intrinsic value in every form. Accepting this truth is the antidote to the anthropocentric mindset that has brought humanity to the brink of lived catastrophe.”
He said this recognition requires a moral shift in humanity’s relationship with nature.
“It demands a moral recalibration — a shift from domination to guardianship. Humanity must remember that its relationship with nature is not that of conqueror or exploiter, but of steward — of guardian. The rationality that once justified control must now demand responsibility.”
Justice (retd) Minallah also recounted cases during his judicial tenure involving prisoners’ rights and enforced disappearances, describing them as defining moments for constitutional protection.
“Overcrowded prisoners, with no counsel and no voice, sent handwritten pleas through ordinary mail. For years they endured degrading conditions.”
He said these petitions eventually led to a landmark judicial pronouncement on prisoners’ rights.
“Their cries converged into a single, consolidated judgment on prisoners’ rights — the first comprehensive pronouncement in our jurisdiction. But constitutional guardianship demands more than words. I visited the Central Prison, Adiala, Rawalpindi myself, and constituted an Implementation Commission to secure compliance.”
He added that families of the forcibly disappeared approached the courts when other avenues had failed.
“Families of the enforced disappeared came from distant corners — because no one else would hear them. The court formed an unprecedented commission, forging jurisprudence that did not rest on paper but moved in reality.”
Justice (retd) Minallah said the impact of judicial intervention became visible when state authorities were confronted.
“When those responsible were confronted, the missing returned. In that moment, the Constitution was no longer textit was protection made real. When prime ministers, journalists, and human rights defenders faced coercive state power, the court reaffirmed a simple truth: the State exists to protect rights, not crush them.”
