Daily Times

For decades, Pakistan has faced ongoing tensions between civilian and military governments, creating an institutional imbalance that undermines democracy and permits presidential decrees to dissolve legislatures. The military’s influence over the judiciary has often prioritized self-preservation over constitutional integrity. Following General Zia-ul-Haq’s era, the courts became more politically confrontational, compromising their objectivity.

This implicit support for military authority reinforced authoritarianism and diminished judicial independence, a core principle of the 1973 Constitution. As a key state institution, the judiciary continually seeks to balance said interests with the rule of law, raising concerns about its independence, especially during military rule. Recently, judges have become prominent public figures, openly engaging in political discourse and attracting media attention, which has sparked debates about potential judicial overreach. With changing political environment in Pakistan, the judiciary remains a powerful force, redefining its role while manoeuvring through the intricacies of power, accountability, and autonomy.

The judiciary’s role in Pakistan’s politics was significantly shaped by the 1954 constitutional crisis, which led to the dissolution of the First Constituent Assembly. The Chief Court of Sindh restored the federal assembly but upheld the Governor General’s orders, creating an imbalance in federal institutions. The judiciary’s lack of independence hindered the establishment of the rule of law, crucial for democratization in transitional states like Pakistan. During the Ayub regime, the judiciary became increasingly co-opted by the military, remaining subservient to the dictator. Its perspective on federalism mirrored authoritarian views, perceiving ethnic and linguistic groups as threats rather than assets to the Pakistani federation.

Fostering a culture of judicial ethics through codes of conduct and accountability measures is vital for maintaining fairness and integrity in the judiciary.

The independence of Pakistan’s judiciary is linked to its neutral role, avoiding bias in case outcomes. However, the political elite, including the military, bureaucracy, and judiciary, have undermined parliamentary sovereignty. Since 1988, the judiciary has faced challenges related to legislative and political matters during assembly dissolutions. The Supreme Court’s inconsistent constitutional interpretations have led to ambiguities in its rulings, limiting its effectiveness as a neutral arbitrator in supporting democracy.

The political crises of the 1990s stemmed not from judicial failure to uphold parliamentary supremacy, but from the inability of civilian governments to repeal the Eighth Amendment. Instead of restraint, the judiciary has displayed activism and politicization, exemplified by the disqualifications of Prime Ministers Yousaf Raza Gillani and Nawaz Sharif. Events like the 2016 Panama Papers controversy and protests against the 2017 Election Act have intensified judicial involvement in politics.

Currently, Pakistan’s legal system faces significant challenges that impact its effectiveness, public trust, and commitment to fundamental rights. While the judiciary is crucial for upholding the rule of law, a backlog of cases across all court levels undermines confidence in its ability to deliver timely justice. Efforts to reduce the backlog in judiciary continue, but systemic challenges remain. Comprehensive judicial reforms are needed to address structural deficiencies and improve capacity. Key areas include recruiting, training, and retaining judicial officers who uphold integrity and impartiality.

Judicial independence is critical, yet concerns about political interference threaten its autonomy. Protecting this independence requires robust safeguards, such as transparent appointment processes, secure tenure, and mechanisms to shield judges from external pressures. Judge selection processes vary across countries and legal systems, with some countries using executive or legislative bodies, independent judicial councils or commissions, merit-based selection processes, judicial elections, hybrid or mixed systems, and tenure and removal provisions.

Executive branches, such as the president or prime minister, often appoint judges, while legislative bodies, like the Senate, may appoint judges. Independent commissions or councils assess candidates’ qualifications and recommend appointments to the executive. Meanwhile, some jurisdictions elect judges through popular vote or other elected officials, such as in the United States. Hybrid or mixed systems combine elements of different selection methods, such as in Italy, where judges are appointed by the Superior Council of the Judiciary.

Judicial tenure and removal mechanisms typically require serious misconduct or incapacity, ensuring accountability while safeguarding judicial independence. International best practices emphasize the importance of selecting judges through transparent, fair, and accountable processes that prioritize qualifications, merit, and judicial independence. These practices aim to maintain public confidence in the judiciary and uphold the rule of law, essential principles for effective governance and democratic institutions.

Pakistan’s legal system also faces challenges in protecting fundamental rights like fair trial and freedom of expression. The Supreme Court plays a vital role in interpreting constitutional provisions and setting precedents in human rights and electoral reforms. Enhancing transparency and accountability is essential to build public trust, supported by initiatives like public access to court proceedings. Technology can transform the judicial system through digitalization, including e-filing and virtual court proceedings, but this necessitates investment in infrastructure and training, alongside data privacy protections.

As part of the international community, Pakistan adheres to human rights standards that influence domestic reforms. Addressing case backlogs, strengthening judicial independence, promoting human rights, and leveraging technology are crucial for an efficient and accountable judiciary. Pakistan can improve its legal system by adopting successful strategies from Europe America, and Scandinavia, known for efficiency and transparency.

These include modern case management, ensuring judicial independence, enhancing public access to proceedings, and investing in judicial education. European models, like Estonia’s digital courts, show how technology can enhance legal efficiency. Fostering a culture of judicial ethics through codes of conduct and accountability measures is vital for maintaining fairness and integrity in the judiciary.

The writer is PhD in Political Science and visiting faculty at QAU Islamabad. His area of specialization is political development and social change. He can be reached at zafarkhansafdar@yahoo.com and tweet@zafarkhansafdar