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An Analysis Of The Independence Of The Judiciary In Pakistan

The basis of democratic governance, the independence of judiciary ensures that the judiciary can stand unbiased in settling legal disputes and keeping a check on the other organs of the state. Pakistan's Supreme Court, being the apex court, plays a pivotal role in ensuring rule by law. But indeed, judicial independence as realized practically in Pakistan faces challenges and these are not few; they are many and take their roots from historical, political, and socio-legal determinants.

Constitutional and Legal Framework:

The 1973 Constitution of Pakistan establishes the judiciary as an independent branch of government. Articles 175-212 of the Constitution outline the structure, powers, and independence of the judiciary. Article 175(3) explicitly mandates the separation of the judiciary from the executive branch. Article 179 ensures the tenure security of Supreme Court judges, allowing them to serve until age 65 or until they voluntarily retire.

The judicial appointment process is crucial for maintaining judicial independence. The 18th Amendment (2010) introduced the Judicial Commission of Pakistan (JCP) and the Parliamentary Committee (PC) to promote transparency and meritocracy in judicial appointments. However, the 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, which have significantly impacted its independence. During military regimes, notably under General Zia-ul-Haq and General Pervez Musharraf, the judiciary's autonomy was severely compromised. The invocation of the 'doctrine of necessity' to justify extraconstitutional actions further undermined judicial independence.

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

Judicial Appointments and Tenure:

Judicial appointments significantly impact the judiciary's independence. The Judicial Commission of Pakistan (JCP) was created to enhance transparency in appointments, but concerns linger regarding its effectiveness and political susceptibility. The JCP, led by the Chief Justice, comprises senior judges, legal professionals, and the Federal Law Minister. Executive involvement in the Parliamentary Committee (PC), which reviews JCP recommendations, may introduce political considerations.

Judges' security of tenure is constitutionally protected, but the removal process involving the Supreme Judicial Council (SJC) has raised controversy. The SJC investigates misconduct allegations against judges but has been criticized for lacking transparency and potential bias. Ensuring impartial functioning of the SJC is vital for preserving judicial independence.

Political Influence and Judicial Behaviour:

Pakistan's judiciary grapples with the persistent issue of political influence. It has been viewed both as an instrument of the executive and as a check on political power, its role fluctuating depending on the political climate. High-profile cases involving politicians frequently bring the judiciary's independence into question.

The Supreme Court's 2017 disqualification of Prime Minister Nawaz Sharif in the Panama Papers case, while demonstrating the judiciary's capacity to hold powerful figures accountable, ignited debate about judicial overreach and the potential for political influence on its rulings.

The judiciary's complex relationship with the military, a powerful force in Pakistani politics, presents another challenge. The military's prominent role in governance has occasionally led to friction with the judiciary. Cases involving military personnel or interests are often seen as crucial tests of judicial independence. The judiciary in Pakistan enjoys a significantly lower degree of independence than its counterpart in India. The party in power, the military, and influential business leaders exert substantial influence on the adjudication of cases, especially those involving politicians, businesspeople, and military personnel.

Judicial Independence and Accountability:

A robust legal system hinges on the delicate balance between judicial independence and accountability. Judges must be shielded from undue influence to ensure fair decisions, but they must also be held responsible for their conduct. The SJC serves as the primary mechanism for judicial accountability, but its effectiveness has been questioned, highlighting the need for enhanced transparency and impartiality to maintain public trust in the judiciary.

Media and civil society play crucial roles in promoting judicial accountability. However, in Pakistan, journalists and activists often face threats and legal challenges, particularly when exposing judicial misconduct or criticizing decisions. Safeguarding freedom of expression and protecting those who hold the judiciary accountable are vital for a healthy legal system.

Socio-Economic Factors:

The Pakistani judiciary operates within a complex social and economic landscape that significantly influences its performance. Widespread poverty and limited access to legal resources for a large portion of the population create 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.

Furthermore, corruption within the judiciary, exacerbated by wealth disparities and undue influence, undermines public trust and judicial independence. The ability of wealthy and influential individuals to potentially sway judicial proceedings unfairly erodes confidence in the system.

To ensure genuine judicial independence, addressing corruption and guaranteeing equitable access to justice is paramount. Only by tackling these issues can the judiciary effectively fulfil its mandate and serve the Pakistani people fairly.

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

Bribery, manipulation of judicial appointments, and undue delays in court proceedings are prevalent, compromising the fairness of judicial decisions. This undermines the rule of law and hinders the delivery of justice.

Addressing this issue requires a multi-faceted approach. Rigorous enforcement of ethical standards, increased accountability, and sustained efforts to shield the judiciary from political and financial pressures are crucial steps towards restoring public faith in the justice system.

Reform Efforts and the Way Forward:
The drive to reform the judiciary and thus improve its autonomy has consistently figured as a major agenda in Pakistan. The 18th Amendment marked a notable stride towards a less opaque process of judicial appointments, but it is just one step; more changes are needed. Key among these would be to make the appointment process more merit-based and transparent, curtailing the undue influence of the executive arm, and empowering the Judicial Commission of Pakistan (JCP) further - these changes cannot be compromised if real judicial independence is sought after.

Pakistan's 18th Amendment aimed to strengthen the judiciary's independence. This was achieved through the establishment of the Judicial Commission of Pakistan (JCP), which significantly reduced the executive branch's influence 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 empowering the judiciary to address constitutional matters, thereby checking both the executive and legislative branches. Furthermore, it promoted provincial autonomy, indirectly impacting resource distribution. Crucially, the amendment signalled a commitment to upholding rights regardless of who might be affected, leading to increased protection of fundamental rights. This approach, prioritizing justice over political expediency, resulted in a more robust system that ensured fairness and equality for all, regardless of their power dynamics.

Enhancing the efficiency and fairness of the Supreme Judicial Council (SJC) is highly necessary in order to keep a check on judicial accountability. Bringing measures into play to enhance transparency in the workings can be helpful - publishing what transpires in the SJC's proceedings and its decisions could go a long way in making people have trust in mechanisms that make judiciary accountable.

Addressing socio-economic issues such as through investment into the physical infrastructure of the judiciary and increased funding alongside legal aid services would be a mean to consider in regards to this matter. It is essential that the judiciary has the necessary resources and political support to work effectively and independently - this is a critical aspect of upholding the rule of law.

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

The judiciary in Pakistan has largely been affected by the military and political leaders, this often leads to the lack of autonomy and inefficiency. The military governments have often imposed martial law which violates the independence of the judiciary that should maintain rule of law. Politicians also play a role by appointing judges, passing judicial reforms or even tampering with legal processes for their own interest or party politics. This interference sometimes hinders the judiciary from delivering justice without fear or favour thus compromising people's trust. Although efforts are made from time to time towards reform, still the legacy of these interventions remains as part of what defines the role played by the judiciary in Pakistan's governance and society.

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565

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