The 26th Amendment to the Constitution has sparked a range of reactions, receiving both criticism and acclaim. Critics argue that the amendment compromises the judiciary’s independence. The Secretary-General of the International Commission of Jurists (ICJ) emphasized that the reforms impose “an extraordinary level of political influence over judicial appointments and administration.”
Conversely, Prime Minister Shehbaz Sharif celebrated the amendment as a “historic achievement,” portraying it as a symbol of national unity. Describing it as more than a mere amendment, he envisioned it as a precursor to a brighter future. Despite this optimism, the legal community remains divided, with many lawyers and judges expressing reservations and uncertainty.
Rather than delving into article-by-article and clause-by-clause analysis of the 26th Amendment at this stage, it would be more appropriate to present the perspective of the people —those who have historically been marginalized, neglected, and overlooked.
The core issue remains whether Pakistan has ever truly had an independent judiciary, free from colonial legacies and resistant to power dynamics. Has the judiciary consistently acted as a fair and impartial arbiter, recognising that its authority ultimately derives from the people’s mandate, which in Islamic tradition, is considered to be sacred?
Equally important is whether the judiciary has attempted to establish a system that is transparent, accountable, and efficient, with minimal corruption. Historical accounts suggest otherwise, as instances of judicial figures negotiating with corrupt elements have raised questions about the moral standing of the judiciary as a whole.
Judicial complicity with authoritarianism:
From its inception, Pakistan’s judiciary has had a complex relationship with authoritarian regimes, often validating unconstitutional actions rather than safeguarding democratic values. This pattern is evident in several key cases:
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The Molvi Tamizuddin Case (1955): In this landmark case, the judiciary validated the dissolution of the Constituent Assembly by Governor-General Ghulam Muhammad. The Apex Court’s endorsement of this action set a precedent that facilitated authoritarian rule, with Chief Justice Muhammad Munir arguing for the legality of the assembly’s dissolution. Justice Alvin Robert Cornelius dissented, emphasizing that Pakistan, as an independent nation, no longer required the colonial tradition of royal assent. His dissent was a rare exception in a broader judicial trend favoring authoritarian interests over constitutionalism.
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The Doso’s Case (1958): Here, the judiciary once again legitimized military rule, approving General Iskander Mirza’s imposition of martial law. Ironically, Justice Cornelius, who had previously dissented in the Molvi Tamizuddin Case, now supported the military intervention. His later roles as Chief Justice under Ayub Khan and as Law Minister under General Yahya Khan illustrated the judiciary’s repeated endorsement and active participation in authoritarian regimes.
This raises critical questions: if the judiciary had consistently acted with constitutional integrity, would judges have resigned in protest against unconstitutional regimes and martial laws? The absence of such action reflects a lack of moral courage and contributed to the weakening of democratic norms.
Failure to protect national integrity:
The judiciary’s passivity during crucial moments of national crisis, such as the secession of East Pakistan in 1971, is telling. While the country was being torn apart and its citizens faced violence, the judiciary failed to hold the responsible parties accountable. This silence represents more than complicity; it signals a lack of moral authority when judicial intervention could have significantly altered the nation’s trajectory.
Judicial endorsement of military coups:
The Nusrat Bhutto Case (1977): In this case, the Supreme Court validated General Zia-ul-Haq’s military takeover under the “doctrine of necessity,” reinforcing a pattern of judicial endorsement for military rule. Figures like Chief Justice Anwarul Haq and later on Moulvi Mushtaq played a central role in Zulfiqar Ali Bhutto’s trial and execution, furthering the judiciary’s complicity in military dominance over civilian governance.
The Zafar Ali Shah Case (1999): The judiciary upheld General Pervez Musharraf’s coup, continuing its tradition of legitimizing military interventions. Chief Justice Irshad Hasan Khan’s decision symbolized the judiciary’s ongoing role in endorsing military rule, facilitating political manipulation under Musharraf’s regime.
Controversial Tenure of Chief Justice Iftikhar Muhammad Chaudhry:
Chief Justice Iftikhar Muhammad Chaudhry, initially hailed as a defender of judicial activism, later faced criticism for his selective interventions. Controversial decisions during his tenure included blocking the privatization of Pakistan Steel Mills, forcing amendments to the Constitution, and handling the Reko Diq case, which led to significant economic repercussions for Pakistan. While judicial activism is important, Chaudhry’s tenure often created uncertainty and instability.
Judicial misconduct in recent times:
Recent Chief Justices, such as Saqib Nisar and Umar Ata Bandial, have also faced allegations of judicial overreach, selective accountability, and bias in high-profile cases, eroding public trust. Examples include:
Saqib Nisar’s activism: His involvement in matters traditionally handled by the executive—like health, education, and infrastructure—had minimal long-term impact, raising questions about judicial overreach.
Justice Qazi Faez Isa’s rulings: His decisions, including allowing delays in elections and affecting political party symbols, have fueled debates on judicial bias and partisanship.
As citizens, it is reasonable to scrutinize political parties that prioritize personal interests over the public good. However, the judiciary’s role should transcend procedural technicalities to deliver justice that reflects the people’s will and rights. The judiciary must uphold principles of justice and equity, rather than merely following legal formalities.
To regain credibility, Pakistan’s judiciary must demonstrate impartiality, accountability, and commitment to democratic norms. This transformation is essential for the judiciary to truly serve as a guardian of the Constitution and the rule of law, rather than a tool for powerful elites.
Furthermore, to foster rule of law, good governance, economic development, and the welfare of the people, immediate steps should be taken to digitize the judiciary and enhance its infrastructure. Similar efforts must extend to all government offices and processes.
The enforcement of proactive disclosure provisions under federal and provincial information acts is also critical, alongside the activation of information commissions to combat the country’s enduring political, economic, social, and moral crises.
The legal practitioners are a divided lot. The protesting lawyers appear to be driven by personal agendas rather than a genuine commitment to the public interest as they represent opposition political parties.
Moreover, the leaders of the legal community have not effectively advocated for the fundamental right to access justice as enshrined in Article 9 of the Constitution of Pakistan. It is essential to ask: have they ever addressed the urgent need for digitization of judicial system and the improvement of infrastructure within the subordinate judiciary and even at the level of high court judges? For instance, how many of them are aware that the Chief Court of Gilgit-Baltistan has successfully implemented a digital system?
At this juncture, it is crucial for these lawyers to focus on developing clear criteria for the appointment of judges under Article 175A. The priority should be to ensure that honest, knowledgeable, efficient, and people-oriented judges are appointed to the High Courts and the Supreme Court.
The manner in which judges ascend to these higher positions is secondary to the fundamental goal of ensuring easy and efficient access to justice for all citizens. Instead of creating unnecessary distractions, the legal community should unite to advance a meaningful agenda that prioritizes the rights and needs of the people they are meant to serve.
Copyright Business Recorder, 2024
The writer is an Advocate, techno-economist and former civil servant. [email protected]
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