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.
Cheema holds separate meetings with envoys of Kazakhstan, Italy 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.
Noon & Co. opens sore in Lahore 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.
Indus Motor Company announces financial results 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.
APCMA welcomes implementation of track and trace system by FBR 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.
NBP continues to empower farmers, women in agriculture with discounted loans 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.
Case for Judicial Reforms
105
0
30.04.2024
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.
Cheema holds separate meetings with envoys of Kazakhstan, Italy 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........
© The Nation
visit website
login
who are we?
contact us
qosheapp
Toi Staff
Gideon Levy
Belen Fernandez
Rami G Khouri
Donald Low
Mort Laitner
Ali Fathollah-Nejad
Nikkei Editorial
Michael Kwet
