Independence of Judiciary in Pakistan

Democracy in any state is based upon the separation of powers, ensuring checks and balances among its state organs. Likewise, this very concept is incorporated in the Constitution of Pakistan to dismantle the abuse of power by any of its three organs, namely the Legislature (Parliament), the Judiciary, and the Executive (PM & cabinet). This principle advocates for exercising powers within the prescribed limits and discourages overreach by any state organ. Unfortunately, Pakistan’s Judiciary has faced significant challenges since its inception. The judiciary is the cornerstone of a country whose very responsibility is to deliver justice to aggrieved parties and to uphold the rule of law. But how can someone expect courts to protect the rights of their subjects when the very institution has itself remained under the due influence of military regimes and political interferences?

Judiciary under military regimes:

Shortly after partition, General Ayub Khan imposed the initial martial law, which was endorsed by courts under the pretext of necessity in Dosso v The State, paving the way for coups and enabling interference with the judiciary’s operations. After the initial coup regime, General Yahya Khan imposed another martial law in 1969, which the Supreme Court of Pakistan later declared unconstitutional in Asma Jillani v Government of Pakistan. And reversed the doctrine of necessity, which had been supported by the court previously in the Dosso case, whose only purpose was to offer protection to unlawful military regimes. The judiciary took a daring action to limit the coup’s impact on the nation’s political scene, but this independence was short-lived, as another – -Martial law imposed by General Zia was rationalised due to political unrest in the case of Begum Nusrat Bhutto v Chief of Army Staff. Consequently, in the initial years following the partition, the judiciary transformed into a tool for the Generals, who manipulated decisions to serve their interests, effectively eroding judicial independence.

Era of Judicial Independence:

The Judiciary in Pakistan had to struggle throughout its history, but 2007 marked a significant shift towards judicial independence. When General Pervez Musharraf got irritated and suspended Chief Justice Iftikhar Chaudry for enquiring into the missing persons’ case, they found intelligence agencies (including ISI and FIA) behind the forced disappearances of up to 400 people, including human rights activists. This suspension resulted in nationwide protests by the lawyers and civil society, who considered it an attempt to further curtail judicial independence. A massive lawyer’s movement (Adhliya Bahali Tehreek) forced President Musharraf to resign and led to the restoration of Chief Justice Iftikhar Chaudhry. This was a historic moment as the judiciary, for the very first time, resisted the executive influence and reclaimed its autonomy.

18th Amendment:

Before the 18th Amendment in 2010, the President primarily appointed judges based on the Chief Justice’s recommendations. This procedure was not transparent. The 18th Amendment established a new structure featuring two entities: the Judicial Commission, headed by the Chief Justice and comprising senior judges, legal officials, and bar representatives, which suggests names; and the Parliamentary Committee, consisting of both government and opposition members from Parliament, which ratifies those names. The ultimate authorisation still originated from the President through the Prime Minister.

Intimidation: A blatant attack on Judicial Independence:

In March 2024, six Islamabad High Court judges sent a letter to the Supreme Judicial Council (SJC), claiming that the Inter-Services Intelligence (ISI) had interfered directly in judicial affairs; this accusation includes accounts of judges’ family members being abducted and tortured to intimidate them, alongside the installation of covert surveillance equipment in judges’ residences. This unprecedented letter, endorsed by Justices Kayani, Jahangiri, Sattar, Ishaq Khan, Tahir, and Imtiaz, led Chief Justice Qazi Faez Isa to organise a full court session and the federal government to form a commission to look into these allegations. The claims also reflected worries highlighted in the previous case of former IHC Justice Shaukat Aziz Siddiqui, who was dismissed in 2018 after alleging that intelligence agents were influencing court decisions and manipulating the judiciary.

26th amendment: A Final blow to Judicial Independence:

Recently, the 26th Amendment was passed by the Parliament, which has undermined the principle of separation of powers by vesting excessive powers in the executive regarding the appointment of judges to the superior judiciary. Before the 26th Constitutional Amendment, the Judicial Commission of Pakistan (JCP) comprised a majority of judges. However, the amendment has changed the composition of the JCP to also include two members of the National Assembly, two members of the Senate, and one woman or non-Muslim member, to be nominated by the Speaker of the National Assembly. These changes in the JCP’s composition allow for direct political influence over it and reduce the JCP’s judicial members to a minority. For the appointment of Supreme Court judges, for example, only five out of 13 JCP members are required to be judges (namely, the Chief Justice of Pakistan, the most senior judge of the constitutional benches, and the three most senior Supreme Court judges).

In addition to nominating judges for appointment, the JCP has been vested with the power to establish “constitutional benches” within the Supreme Court and High Courts. These benches shall have exclusive jurisdiction over matters involving the interpretation of the Constitution and the enforcement of fundamental rights. The 26th Constitutional Amendment has also made similar amendments to the jurisdiction of High Courts, where matters involving the writ jurisdiction of High Courts have been transferred to “constitutional benches” nominated by the JCP. The Secretary General of the International Commission of Jurists, Santiago Canton, added, “These changes bring an extraordinary level of political influence over the process of judicial appointments and the judiciary’s administration”.

Conclusion:

The judiciary in Pakistan has struggled a lot regarding its institutional autonomy, from being dictated by military regimes to continuous executive overreach, and the judiciary has been totally bogged down by the officials in higher offices. Now the 26th Amendment has crippled judicial autonomy, undoing years of progress. To ensure the supremacy of the rule of law, the judiciary has to be free from any sort of external pressure; otherwise, justice will remain elusive for citizens.