Analysis of judicial independence in Pakistan

The independence of the judiciary, which is the basis of democratic governance, ensures that the judiciary can remain impartial in resolving legal disputes and in controlling other organs of the state. The Supreme Court of Pakistan, being the highest court, plays a key role in ensuring the rule of law. However, in reality, judicial independence as implemented in practice in Pakistan faces challenges, and there are many of them; there are many of them and they originate from historical, political and socio-legal conditions.

Constitutional and legal framework:

The 1973 Constitution of Pakistan establishes the judiciary as an independent branch of government. Articles 175–212 of the Constitution define the structure, powers and independence of the judiciary. Article 175(1) 3 clearly requires the separation of the judiciary from the executive power. Article 179 provides job security for Supreme Court judges, allowing them to serve until the age of 65 or until they voluntarily retire.

The process of appointing judges is crucial to maintaining judicial independence. The 18th Amendment (2010) introduced the Judicial Commission of Pakistan (JCP) and the Parliamentary Commission (PC) to promote transparency and meritocracy in the appointment of judges. However, this process remains complex and susceptible to political manipulation.

Historical context:
Pakistan’s judiciary has a complex history, marked by periods of direct military rule and political upheaval that have significantly impacted its independence. During the military regimes, especially those of General Zia-ul-Haq and General Pervez Musharraf, the autonomy of the judiciary was seriously threatened. Invoking the “doctrine of necessity” to justify extra-constitutional actions has further undermined judicial independence.

The Lawyers’ Movement (2007-2009) is a key moment in the history of the judiciary. This mass protest movement, sparked by President Musharraf’s dismissal of Chief Justice Iftikhar Muhammad Chaudhry, galvanized civil society and the legal community. The move ultimately led to Chaudhry’s reinstatement, reaffirming the judiciary’s role as an independent arbiter.

Judicial nominations and terms of office:

Judicial nominations significantly affect the independence of the judiciary. The Judicial Commission of Pakistan (JCP) was established to increase transparency in appointments, but concerns remain about its effectiveness and political susceptibility. The JCP, headed by the Chief Justice of the Supreme Court, is composed of senior judges, lawyers and the Federal Minister of Law. The involvement of the executive in the Parliamentary Committee (PC) that reviews the JCP recommendations may introduce political considerations.

The security of judges’ tenure is constitutionally protected, but the removal process involving the Supreme Judicial Council (SJC) has been controversial. The Supreme Court is investigating allegations of misconduct against judges but has been criticized for a lack of transparency and potential bias. Ensuring the impartial functioning of the Supreme Judicial Council is crucial to maintaining judicial independence.

Political influence and judicial behavior:

Pakistan’s judiciary faces a persistent problem of political influence. It was seen as both an instrument of executive power and a check on political power, and its role varied depending on the political climate. High-profile cases involving politicians often call into question the independence of the judiciary.

The Supreme Court’s 2017 disqualification of Prime Minister Nawaz Sharif in the Panama Papers case, while demonstrating the judiciary’s ability to hold influential figures to account, sparked a debate about judicial overreach and the potential for political influence on its rulings.

The justice system’s complex relationship with the military, a powerful force in Pakistani politics, poses another challenge. The military’s prominent role in governance has sometimes led to friction with the justice system. Cases involving military personnel or interests are often seen as key tests of judicial independence. The judiciary in Pakistan enjoys a much lower degree of independence than its counterpart in India. The party in power, the military and influential business leaders have a significant influence on adjudicating cases, especially those involving politicians, businessmen and military personnel.

Independence and responsibility of judges:

A sound legal system is based on a delicate balance between judicial independence and accountability. To ensure fair decisions, judges must be protected from undue influence, but must also be held accountable for their conduct. The SJC serves as the main judicial accountability mechanism, but its effectiveness has been questioned, underscoring the need for greater transparency and impartiality to maintain public trust in the justice system.

The media and civil society play a key role in promoting judicial accountability. However, in Pakistan, journalists and activists often face threats and legal challenges, especially when they expose judicial misconduct or criticize decisions. Protecting free speech and protecting those holding the justice system accountable is crucial to a healthy legal system.

Socio-economic factors:

The Pakistani judiciary operates in a complex social and economic landscape that significantly affects its functioning. Widespread poverty and limited access to legal remedies for a large part of society constitute a significant barrier to seeking justice. This places a heavy burden on the judiciary, which is tasked with delivering fair and timely justice despite these challenges.

Moreover, corruption in the judiciary, exacerbated by wealth disparities and excessive influence, undermines public trust and judicial independence. The ability of wealthy and powerful people to potentially influence court proceedings unfairly undermines trust in the system.

To ensure true judicial independence, it is crucial to tackle corruption and guarantee equal access to justice. Only by resolving these issues can the judiciary effectively discharge its mandate and serve the Pakistani people with integrity.

Corruption:
Corruption in Pakistan’s judicial system poses a serious threat to the integrity of the justice system and public trust. While reforms such as the Judicial Commission of Pakistan (JCP) and the Parliamentary Commission (PC) aim to promote meritocracy and transparency, political influence and nepotism continue to undermine these efforts.

Bribery, manipulation of judicial appointments and unnecessary delays in judicial proceedings are common, compromising the integrity of judicial decisions. This undermines the rule of law and hinders the administration of justice.

Solving this problem requires a multi-faceted approach. Rigorous enforcement of ethical standards, increased accountability, and continued efforts to protect the judiciary from political and financial pressure are key steps toward restoring public faith in the justice system.

Reform efforts and next steps:
The drive to reform the judiciary and thereby increase its autonomy remains a major agenda in Pakistan. The 18th Amendment was a significant step toward a less opaque judicial appointment process, but it was only one step; more changes are needed. Key among these would be to make the nomination process more merit-based and transparent, reduce undue influence of the executive, and further strengthen the powers of the Judicial Commission of Pakistan (JCP) – these changes cannot be tampered with if true judicial independence is sought.

Pakistan’s 18th amendment was intended to strengthen the independence of the judiciary. This was achieved through the establishment of the Judicial Commission of Pakistan (JCP), which significantly reduced the influence of the executive on judicial appointments. The President’s power to appoint judges was transferred to the JCP, a body composed of senior judges and legal experts.

The amendment also expanded judicial oversight by giving the judiciary the power to deal with constitutional matters, thus checking both the executive and legislative branches. Moreover, it promoted provincial autonomy, indirectly influencing the distribution of resources. Most importantly, the amendment signaled a commitment to respect rights regardless of who may be affected, leading to increased protection of fundamental rights. This approach, prioritizing fairness over political expediency, resulted in a more robust system that ensured justice and equality for all, regardless of their power dynamics.

Increasing the efficiency and integrity of the Supreme Judicial Council (SJC) is extremely necessary to control the accountability of judges. Introducing measures to increase the transparency of work may be helpful – publishing information about events in the proceedings of the Supreme Judicial Council and its decisions can go a long way to instilling citizens’ confidence in mechanisms ensuring the accountability of the judiciary.

Addressing socio-economic issues, for example through investment in the physical infrastructure of the judiciary and increased funding along with legal aid services, would be a measure to consider in this regard. It is essential that the judiciary has the necessary resources and political support to operate effectively and independently – a key aspect of maintaining the rule of law.

Application:
Pakistan’s judiciary faces serious challenges, including a significant backlog of cases, allegations of corruption and limited access to justice, especially in rural areas. While efforts have been made to strengthen its sovereignty and effectiveness, political interference and delays persist. The Supreme Court has asserted its authority through landmark rulings, but concerns remain about its impartiality. Reforms such as the 18th Amendment sought to strengthen judicial independence and accountability. Modernization of court procedures and legal education are continuous processes. Despite progress, achieving an impartial, effective and accessible judiciary remains a complex challenge for Pakistan.

Pakistan’s justice system is heavily influenced by military and political leaders, which often leads to a lack of autonomy and inefficiency. Military governments have often imposed martial law, which violates the independence of the judiciary, which should uphold the rule of law. Politicians also play a role by appointing judges, passing judicial reforms, and even manipulating the legal process for their own self-interest or partisan politics. This interference sometimes makes it difficult for the judiciary to deliver justice without fear or favor, thereby undermining the confidence of citizens. While reform efforts are made from time to time, the legacy of these interventions remains part of what defines the role played by the judiciary in Pakistan’s governance and society.

Written by: Md.Imran WahabIPS, IGP, Supply, West Bengal
E-mail: (e-mail protected), telephone number: 9836576565