Case for Judicial Reforms

Last month, six Islamabad High Court judges submitted a letter to Pakistan’s Supreme Judicial Coun­cil (SJC) about the meddling of Intelli­gence agencies in the jurisdiction of some political cases. They alleged intimidation by these agencies, claiming that they had black­mailed them by secret bed­room surveillance recordings and their families as well as tor­ture and abduction to influence the judges’ verdict regarding some cases. Following the matter, Chief Justice of Pak­istan, Qazi Faez Isa called an emergency meeting of all the Supreme Court judg­es and now the SC has resorted to a Suo Motto action, thus re-igniting the harrow­ing debate of whether Pakistan’s judicia­ry will ever be free from influence from other state institutions.

The judiciary is one of the three prongs of state governance, the other two being the legislature (parliaments) and execu­tive (prime minister and his cabinet). For the smooth and effective working of any country, a sufficient separation of power needs to be maintained between the re­spective three branches, where collabo­ration is always preferred over control or cohesion. But Pakistan, a country with a crisis of governance has always suffered from a chronic imbalance between the state institutions. One such instance is that of impediments to judicial autono­my by various political and non-political forces. It wouldn’t be wrong to say the ju­diciary has, for most of Pakistan’s histo­ry, juggled between the two extremes of ‘no autonomy’ to ‘too much autonomy or judicial activism’. A balanced and coher­ent approach, one that upholds the law and constitution supreme, has largely been missing.

A prominent feature of the judicial his­tory of Pakistan is military intervention by dictators disguised as constitution­al presidents, to strengthen their rule. This has made the judiciary nothing more than a stepping stone for these rulers to achieve their vested motives at the cost of law and constitution. The stage for this was set in the Molvi Tamizzuddin vs Fed­eration of Pakistan Case (1995) as it may rightly be called the first case that brought our judicial system into disrepute and at the same time gave birth to the Doctrine of State necessity. While the nascent state of Pakistan nation faced a constitutional crisis, Governor General Ghulam Moham­mad dissolved the Constituent Assembly at whim and dismissed Prime Minister Khwaja Nazimuddin. Maulvi Tamizud­din Khan, President of the Constituent Assembly, challenged the dissolution as unconstitutional and although the Sindh High Court ruled in his favor, Pakistan’s Federal Court reversed the provincial court’s judgment by a 4-1 majority, send­ing our democracy to the gallows.

Then after a long battle against uncon­stituinalism, when the country finally had a constitution almost 10 years after inde­pendence, General Ayub Khan imposed the first ever country-wide martial law and abrogated the first constitution in 1958. Once again, on orders of military rulers, the superior judiciary used a du­bious ‘doctrine of state necessity’ to legit­imize the defenestration of parliament. General Ayub Khan, who also became a self-appointed field marshal and presi­dent, never faced any challenge from the judiciary. His 11-year rule was marred by election rigging, horse trading, and vio­lation of human rights, but the judiciary chose to look the other way.

Yet once again, in 1969, General Ayub Khan violated his constitution and hand­ed over power to the new army chief, Gen­eral Yahya Khan, rather than to the speak­er of the assembly and the judiciary did not utter a word of opposition to this act. Having become the second dictator, Gen­eral Yahya Khan refused to hand over power to the winning party in the 1970 general elections and launched a brutal military action, but again the superior ju­diciary was not bothered by this. In East Pakistan, millions of people became refu­gees as a result of military atrocities, but the Supreme Court of Pakistan never is­sued a single injunction or order against the military dictatorship of General Ya­hya Khan. The consequent fall of Dhaka came as a blow to Pakistan’s sovereignty as the state institutions failed to address the grievances of the Bengalis.

For the former part of Pakistan’s histo­ry, we see that the judiciary has remained non-autonomous and influenced by vari­ous state institutions. For the latter part of history, it took on a more dominant role when it partook in widespread judicial activism, which many blame for having caused political and economic ramifica­tions for the country. One of the most con­tentious cases of judicial activism in Pak­istan was the disqualification of former prime minister Nawaz Sharif. In 2017, the Supreme Court removed Sharif from his position on charges of corruption, based on evidence gathered by a Joint Investiga­tion Team formed by the court. The dis­qualification of Sharif triggered political instability and turbulence, with the oppo­sition claiming that the Judiciary had tak­en a partisan stance in politics. This im­age of the Judiciary as a political player has eroded the public’s faith in its capac­ity to serve as a dispassionate mediator. This is one example of how judicial activ­ism has caused political disruption.

Apart from political consequences, judi­cial activism has also cost the country ec­onomically. A prominent example is that of the Reko Diq project, a sad story of mis­management and politicization of nation­al issues along with unnecessary judicial activism which cost billions of dollars to the country besides massive embarrass­ment at the global level.

Another such example is that of the ju­dicial meddling in Pakistan Internation­al Airline (PIA) operations, which began to lose competence due to nepotism and mismanagement. Chief Justice Mian Saqib Nisar took a suo moto case against PIA’s management for changing the livery of the airline and replacing the national flag with the markhor, the national animal of the country. SCP also barred PIA from re­cruiting more employees. Furthermore, the court also transgressed into the do­main of the executive branch by requir­ing the executive to seek its permission if the government intended to privatize PIA. It has lost more than PKR 30 billion since the SCP took up the suo-moto case.

It is important to note that according to Article 184(3) of the Pakistani constitu­tion, the Supreme Court of Pakistan has the jurisdiction to take Suo Motu notice of any matter of public significance. The two prerequisites for the invocation of Article 184 (3), as pronounced in the Constitu­tion, are that the petition filed must per­tain to a matter of public importance and deal with a breach of fundamental rights that have been enunciated in the Consti­tution. But the scenario of Pakistan pres­ents a bleak picture where there have been numerous breaches of the law un­der the disguise of state necessity.

Pakistan has faced a crisis of gover­nance since its inception. The main rea­son is the non-autonomous working of various state institutions, weak institu­tional structure as well as the abuse of power. If Pakistan is to tread on a jour­ney of democratic strengthening and ef­ficient governance, the judiciary needs to play a more neutral role by ensuring that it works to hold only the law and consti­tution supreme. The judiciary is an inte­gral part of any country’s administration as it has the apex power to interpret laws and disseminate justice as well as uphold human rights. If the judiciary becomes contaminated, the country is bound to fall into the pit of anarchy and chaos. Therefore, judicial integrity and indepen­dence must be given top priority where­as the judiciary needs to make sure that it works by a more balanced approach in­stead of resorting to the two extremes of judicial activism and overdependence on non-judicial institutions.

Noor Humair
The writer is an undergraduate student at the Forman Christian Collage University in Lahore. She is majoring in Economics.