Pakistan’s judiciary: Pause, reflect, reform

The ongoing blame game between the politicisation of the judiciary and the judicialisation of politics in Pakistan not only raises crucial questions about accountability but also paints an alarming picture of the state of affairs. Recent events in Pakistan, with controversies within the superior judiciary continuing to surface, fuelled by internal power struggles and external pressures, underscore the urgent and critical need for judicial reforms.

Pakistan's judiciary has a history of overstepping its boundaries, often under the pretext of safeguarding the constitution and the rule of law. Criticism of the judiciary's actions has been met with contempt of court charges, fostering an environment of impunity.

The roots of modern judicial activism can be traced back to the Lawyers' Movement of 2007-2009, a pivotal moment in our history that significantly shaped our current judicial landscape. This movement, while aligning political parties with the cause, also led to factionalism, with pro-judiciary and pro-government camps emerging. This marked a significant shift, signalling increased political and establishment interference in judicial affairs.

Despite emerging from a mass movement, the modern judiciary struggles with perceptions of being influenced by the establishment. The judiciary's involvement in political engineering and regime changes has not only severely eroded public trust, but also highlighted the urgent need for reform.

Article 184(3), granting the Supreme Court suo motu powers, has become a double-edged sword. While intended for constitutional review, it has sometimes led to judicial overreach, with judges straying beyond the scope of petitions and delving into matters of public policy.

Recent instances, such as the suo motu action over election delays in Punjab and KP in 2012, have sparked controversy, highlighting concerns about the judiciary's impartiality and procedural fairness.

In these circumstances, suo motu action was unjustified, observed justice Mandokhail. Agreeing with him, justice Yahya Afridi termed it “judicial pre-emptive eagerness to decide", especially because an intra-court appeal on the same matter was pending before the Lahore high court.

In recent events, six high court judges, including justice Babar Sattar and justice Sardar Ejaz Ishaq Khan, aired their grievances about the interference of intelligence agencies in the ministry of justice, and certain Supreme Court justices have taken to delivering speeches advocating for the interests of the general populace within the courtroom. These occurrences signify that even among the group traditionally seen as less inclined towards popular sentiments, there is now a tendency towards judicial populism. The judgments delivered by this group have displayed characteristics of judicial activism, aligning closely with the precedents set by retired judges known for their populist approaches, which significantly impacted the nation's political, economic, and judicial landscapes.

This new trend seems to stem from an ideology that portrays itself as a defender of democracy and judicial independence. However, it doesn't necessarily prioritise upholding the supremacy of the constitution.

This emerging trend, perhaps intentionally, seems poised to undermine Chief Justice of Pakistan (CJP) Isa's insistence on adhering strictly to the constitution's original intent rather than interpreting it through a specific ideological lens. He now faces challenges from the ministry of justice and a new wave of activist judges, leaving him in a difficult position.

Judicial activism impacts politics and has economic repercussions, deterring investors and creating uncertainty. The judiciary's intervention in executive and legislative matters can undermine democratic processes and weaken institutional capacity.

Reforms are not just necessary; they are imperative to address these challenges. Curtailing the administrative authority of the CJP, introducing transparent criteria for judicial selection, and limiting suo motu jurisdiction are crucial steps. If implemented, these reforms can restore public trust, strengthen democratic processes, and pave the way for a more accountable and balanced judiciary.

Judges must be open to criticism and subject themselves to institutional checks and balances. Without meaningful reforms, the cycle of institutional transgressions will persist, hindering the progress of democracy in Pakistan.

It's crucial to note that judicial independence isn't solely a function of external factors; internal and institutional independence also play significant roles.

External independence, the foremost concern, acts as a bulwark against undue influence, ensuring that justice is served based on evidence and law, free from external pressures. Recent events underscore this, with reported instances of intelligence agencies pressuring judges, highlighting the vulnerability of justice to external forces.

To combat such interference, the judiciary must unite to develop proposals that thwart nonjudicial actors' schemes and establish mechanisms for redress. These proposals must be adaptable and inclusive, addressing evolving challenges and the distinct pressures faced at different levels of the judiciary.

Internal independence hinges on appointing impartial judges of high moral standing. As seen in Canada's Supreme Court selection criteria, selection processes should consider various qualities beyond legal expertise.

Institutional independence, the backbone of the judiciary, necessitates a democratic environment free from political influence. This requires legislative and executive support to bolster the judiciary's resources and efficiency and ensure timely justice delivery. Pakistan must ensure that the tradition of politicising the judiciary ends and a more democratic culture is encouraged.

Finally, these reforms will influence people’s perceptions of Pakistan’s judiciary and increase faith in justice. This will lead the state to the path of the rule of law and strengthen its constitutional identity. Meaningful dialogue, rather than confrontational rhetoric, is key to upholding justice as a shared commitment to societal well-being.

This article is authored by Soumya Awasthi, member, Centre on Armed Groups, New Delhi.