Judiciary in Pakistan - A Prisoner of the Past

“There is no need for the Army to impose Martial Law. They are ruling us through these general judges (Judges of the Supreme Court),” said Haider Imam Rizvi, Member of Sindh Bar Association to the Chief Justice of Pakistan during a meeting of Judicial Council.

On October 21, 2023, after hearing a set of petitions against the trial of civilians in military courts, Pakistan’s Supreme Court, in a landmark judgment declared the trial of civilians in military courts as “null and void". It also observed that the concerned sections of the Army Act used for justifying trials of civilians in military courts were “unconstitutional.”

The court ruling, which the military-backed interim government is planning to challenge, yet again highlights the exalted status of the Judiciary in Pakistan as an assertive power centre.

Generally, it is believed that the armed forces are Pakistan’s sole dominant power entity but history shows that the judiciary too has played a central role in Pakistan’s governance.

In fact, the legal fraternity in Pakistan, through its cyclic acts of collaboration, interventions and contestations has been able to carve out a distinct role in national polity.

Today, as crisis-ridden Pakistan stands at the crossroads of history, the role of the judiciary has once again taken centre stage. The courts are beset with a plethora of political litigations which will not only determine the future of leaders like Imran Khan and Nawaz Sharif, but could potentially shape the future landscape of the nation.

Judicial Structure in Pakistan

The judicial system in Pakistan draws heavily from pre pre-independence British system. The three tier system consists of district courts which have both civil and criminal jurisdiction, five provincial high courts (one each for four provinces and one for Islamabad Capital Territory) and the Supreme Court with both original and appellate jurisdictions.

In addition, the Federal Shariat Court (FSC) was established in 1980 to judge the compliance of legislation with Islamic tenets. FSC hears appeals under the Hudood Ordinances and has played a critical role towards the 'Islamisation of the Law" in Pakistan. In fact, many laws in Pakistan are based on Sharia laws, including 'Qisas' (equal retaliation) and 'Diyat' (compensation).

As regards the military personnel, the Pakistan Army Act, 1952, serves as the legal framework for the Armed Forces. However, Section 2(1)(d) of the Army Act expands its scope to encompass anyone who "seduces or attempts to seduce any person subject to this Act from his duty or allegiance to government" and has committed an "offence under the Official Secrets Act 1932." The ambit of the Army Act was further broadened through an amendment in 2015-16, to try individuals claiming or known to belong to "any terrorist group or organization using the name of religion or a sect" and engaging in attacks on civilians or military institutions, establishments, or personnel.

The jurisdiction of courts over armed forces has, however, been curtailed by Clause (3) of Article 199, according to which the personnel of armed forces do not have the right to approach high courts on 'service matters".

Growth as a Power Centre

The first key intervention of the Judiciary came just after independence in 1955 when the Federal Court of Pakistan (now the Supreme Court) upheld the dismissal of Prime Minister Khawaja Nazimuddin’s government by then Governor General Ghulam Muhammad.

The subsequent empowerment of the Judiciary to exercise control over the actions of other branches of Government was given a fillip by the 1973 Constitution which enhanced the judiciary’s powers of review by granting it jurisdiction to enforce the observance of fundamental rights.

The advent of Public interest litigations (PILs) in the '90s, significantly raised the profile of courts and facilitated their intervention in the domains of the executive and legislature under the ambit of public interest. These acts of judicial overreach in the domain of executive and legislative institutions have repeatedly undermined elected civilian supremacy.

In 2007, Lawyers’ Movement & dismissal of Chief Justice Iftikhar Chaudhary gave a new trajectory to judicial activism in Pakistan. The movement challenging the authority of General Musharraf lasted for almost two years and ended with the reinstatement of Justice Chaudhary.

The bar associations, which now wield considerable clout, too benefited from engagement with the political leaders, military establishment and other influential stakeholders to increasingly become a collective force with distinct party leanings. The resultant "Judicialization of Politics" and "Politicization of the Judiciary" has led to the growth of an ambitious and confrontational breed of judges and legal fraternity.

The dysfunctionality of most of the state institutions and their continuous confrontation with each other also created suitable conditions for the judiciary to act as the sole arbiter, undermine them and raise its own profile.

Gradually, Judges started wielding excessive power and soon the institution of the Chief Justice of Pakistan began to be considered as one amongst the 'Trinity' (the other two being COAS and PM). Chief Justice Iftikhar Chaudhry, Saqib Nisar, Umar Bandial and now Chief Justice Qazi Faez Isa exemplify this growing trend.

However, the resultant growing public visibility of judges has also rendered them vulnerable to pressures, especially on social media and made them conscious of the increased scrutiny by civil society.

In another seminal decision in October this year, the Supreme Court gave up the Chief Justice's discretionary powers under the Practice and Procedure Act, 2023 to form benches and take suo moto notices. This has been widely appreciated as a significant milestone in Judiciary's quest for regaining credibility.

Relations with Military Establishment

It would perhaps be fair to say that Pakistan is a State run by 3 Ms - Military, Mullah (Clergy) and Munsif (Judiciary).

However, Pakistan’s turbulent history also reflects a complex relationship between the armed forces and the Judiciary. Military dictators such as Gen Ayub Khan and Gen Zia used the judiciary to silence their opponents.

Occasionally, the Courts also attempted to put a check on certain acts of political interference by the military, as was evident in the charging of deposed Gen Musharraf with treason for his past actions and holding Yahya Khan’s martial law as illegal in "the Asma Jilani versus the State of Punjab case - 1972" . More recently, the Judiciary has also begun to entertain petitions against armed forces including their acts of high-handedness and commercial enterprises. For example, in February 2019, Justice Isa criticised the role of intelligence agencies in Tehreek-e-Labbaik Pakistan's (TLP) sit-in demonstrations while Islamabad High Court (IHC) not only declared the construction of the Navy golf course in the federal capital as "illegal" but also rejected the claims of the GHQ Directorate on 8,068 acres of land in the Margalla Hills National Park.

However, the courts have not crossed a certain "red line" and chosen not to pursue the implementation of military-related judgments with as much vigour as they have done in civilian cases.

As analyst Rana Banerjee recently pointed out in his column that “Though interspersed with brief bouts of independence, Pakistan’s Supreme Court has always fallen in line, whenever threatened by unforeseen outcomes of political engineering by the omnipotent military establishment.”

The Supreme Court has for instance legitimised the military's overarching role in internal security and there are persistent allegations about the influence of the military and intelligence agencies on the Judiciary and their constant attempts to manipulate them.

The military hierarchy has also, through use of pressure tactics and its wide surveillance apparatus, carefully calibrated the limits of assertion of powers by the Judiciary and given them a free run as long as judges exercised their powers in line with the Military's core interests and ambitions.

The higher judiciary has thus joined the military as a key, non-democratic power centre. Though the military is certainly the most powerful entity, the mutual interests of the two and the interplay of their relationship with each other will be the key factor in shaping Pakistan's destiny.

Prognosis

In most of the democracies, a balance exists between the three organs of state, i.e. the executive, the judiciary and the legislature. In Pakistan however, where the foundations of a true democracy have always been shaky, the Judiciary has repeatedly become the arbiter of key political developments. An institution which is meant to be a non-elected apolitical entity has repeatedly demonstrated a willingness to confront or align with the political and military leadership as per its convenience.

One of the challenges it faces is the system of judicial appointments and promotions. The Judicial Commission responsible for selection is technically composed of multiple stakeholders, but it is in reality an in-house mechanism controlled by the senior members of the Judiciary.

The allegations of judges being appointed based on parochial considerations, political affiliations or military loyalties have greatly tarnished the reputation of the Judiciary in Pakistan. A huge backlog of over two million pending cases across the country is another cause of public concern.

The question of judicial accountability versus judicial independence in Pakistan is a tricky one and the answer lies in an honest introspection by the legal community.

With elections on the horizon, and many contentious constitutional issues already under litigation, courts in Pakistan have a crucial role to play. Chief Justice Qazi Faez Isa who is in Chair till October 2024 is seeking to take control but it could turn out to be a bridge too far.