JUDICIAL REFORMS: ADDRESSING PAKISTAN’S JUDICIAL CHALLENGES AND UPHOLDING DEMOCRATIC PRINCIPLES

Maria Mansab

Publishing date: 08 June 2024

In recent months, Pakistan’s judiciary has been engulfed in controversy, marked by internal conflicts over administrative authority or the judiciary’s tendency to operate beyond its prescribed powers. This is not a new phenomenon; over the years, the judiciary has frequently overstepped its bounds under the pretext of safeguarding the Constitution and upholding the rule of law. These actions have often led to significant legal and political turmoil, raising critical questions about the judiciary’s role and its impact on democracy and governance in Pakistan.

The Law and Justice Commission of Pakistan (LJCP) disclosed in its biannual report on judicial statistics for the period from July to December 2023 that 1.86 million cases (82%) are pending at the district judiciary level, while the remaining 0.39 million cases (18%) are at the upper tier, which includes the Federal Shariat Court, the Supreme Court, and high courts. The report indicated a 3.9% increase in the total number of pending cases during this period. These statistics highlight that the judiciary is struggling to perform its primary duty of timely delivering justice.

In recent times, Pakistan’s judiciary has expanded its authority to include not only legal issues but also political matters. Those who have questioned the validity of the judiciary’s questionable decisions have faced the possibility of being charged with contempt of court. Through suppressing valid criticism, the judiciary has elevated itself to almost invulnerability and lack of accountability. The problem occurs when judges display unwarranted enthusiasm in nullifying legislative or executive measures. Furthermore, there have been instances where the higher judiciary has been observed to exceed the limitations of the specific cases presented before it and permit its own subjective opinions to impact rulings on issues about public policy.

For instance, On May 17, the Supreme Court initiated contempt proceedings against Independent Senator Faisal Vawda, following his press conference Vawda questioned judges about their claims of intelligence agencies’ meddling in judicial matters, stating that without evidence, no one had the right to point fingers at institutions. This action, led by a three-member bench headed by Chief Justice Qazi Faiz Isa, has raised questions about selective enforcement, as other prominent figures, such as Shoaib Shaheen—a Supreme Court advocate and political activist—regularly criticize the judiciary without facing similar repercussions. The perceived contrast raises questions about potential immunity based on professional status and hints at possible biases towards certain political affiliations within the judiciary. Such concerns underscore broader issues of consistency and fairness in upholding the court’s dignity.

Judicial activism carries significant economic repercussions, dampening investor confidence due to concerns over increased litigation risks. When the judiciary oversteps its bounds and appears overly assertive, it fosters public resentment towards the courts. This negative perception not only undermines trust in judicial independence but also exacerbates apprehensions among investors, thereby impeding economic growth and stability.

Countries like Germany, Japan, the United Kingdom, and Canada offer notable examples of judiciaries that maintain the dignity of their courts. In Germany, the Federal Constitutional Court’s Lisbon Treaty Decision (2009) upheld the treaty while ensuring the German parliament retained sufficient powers, balancing national sovereignty with European integration. In Japan, the Supreme Court’s Apportionment Case (2009) identified electoral district disparities as unconstitutional but left the remedy to the legislature, respecting the separation of powers. The UK Supreme Court’s Miller Case (2017) ruled that triggering Article 50 for Brexit required parliamentary approval, emphasizing procedural adherence without encroaching on political decisions. Similarly, Canada’s Supreme Court, in the Reference Re Secession of Quebec (1998), delineated a legal framework for Quebec’s potential secession while entrusting the political process to elected officials.

These examples show how the courts in these countries have upheld judicial dignity by exercising restraint, focusing on legal principles, and respecting the boundaries between judicial, legislative, and executive functions. By doing so, they have reinforced public trust in their impartiality and adherence to the rule of law.

Judges must acknowledge that they are not immune to criticism and must subject themselves to institutional oversight and controls. The courts should refrain from using the threat of contempt of court as a means to suppress legitimate and essential criticism from society. Throughout history, the consequences of the judiciary becoming politicized and politics becoming overly influenced by the judiciary have been severe.

Pakistan’s judicial system highlights the urgent need for reform to ensure judicial independence, accountability, and impartiality. The significant backlog of cases underscores the imperative for prioritizing the timely delivery of justice, while concerns about the judiciary’s expansion into political realms and selective enforcement of contempt charges raise questions about consistency and fairness. Examples from other countries emphasize the importance of judicial restraint and adherence to legal principles, reinforcing public trust in the judiciary’s impartiality and adherence to the rule of law. Moving forward, judges must accept criticism, submit to oversight, and avoid using contempt charges to stifle legitimate dissent. This will break the cycle of institutional transgressions and restore public confidence in Pakistan’s judiciary, crucial for its democracy to thrive.