• A judiciary untainted by political influence is essential to uphold the rule of law and protect constitutional rights

AWESAAR SEHAJ BANBHAN ADVOCATE

Pakistan’s legal system has been at the center of political conflict and constitutional debate. The ratification of the 26th Amendment to the Constitution in October this year sparked heated debate and raised serious concerns about the erosion of the independence of the judiciary, a fundamental element of any democracy.

Judicial independence is eroding

It introduces changes that could undermine the autonomy of the judiciary. The biggest changes are limiting the term of the Chief Justice of Pakistan (CJP) to three years and transferring the power to appoint the CJP to a Special Parliamentary Committee (SPC). A committee, chaired by the prime minister and comprising members of both houses of parliament, will select a chairperson from among the three senior judges of the Supreme Court.

The change marks a departure from the long-standing practice of the chief justice automatically serving as the chief justice. It guaranteed that appointments were made solely on the basis of seniority and the judge’s qualifications, without any political interference.

Impact on judicial functions

In addition, the amendment grants the executive greater powers over administrative tasks within the judicial system, such as case allocation and resource allocation. This expanded role comes with the risk of inefficiency, delays and, more worryingly, potential bias in the allocation of cases. Such changes may also undermine public confidence in the ability of the judiciary to act as impartial guardians of justice.

Risk of political influence

Critics warn that allowing political entities to influence judicial appointments can transform judicial agencies into political tools. By participating in this process with politicians, the amendment is a judge’s political affiliation, not based on its qualifications and integrity. This undermines the impartiality of the judiciary and undermines its fundamental function of overseeing the executive and legislative branches.

National and international issues

The amendment was met with strong national and international condemnation. The UN Human Rights Bureau and the International Legal Counsel are paying serious attention to warn that it will threaten legal independence and endanger the rights and protection of Pakistan’s citizens.

In the country, the opposition party, legal experts and civilian social organizations strongly condemned the amendment, described it as a return of legitimate autonomy and took a step towards a higher political government.

The Way Forward

The debate surrounding the 26th Amendment highlights the need for thoughtful reforms that strengthen the judiciary without compromising its independence. A judiciary untainted by political influence is essential to uphold the rule of law and protect constitutional rights. However, given these challenges, the autonomy of Pakistan’s judiciary is essential to ensure fairness, accountability and justice among its people. An independent judiciary should remain free from politicization and outside interference, and therefore must reflect on the profound implications of these changes, reassessing their impact in order to preserve the integrity of Pakistan’s judiciary and thus its democratic future.

Read: What is Pakistan’s new constitutional amendment all about?

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Read: The 26th Amendment: Is Pakistan’s Judiciary under Siege?

The post Political Use of the Judiciary and the 26th Amendment in Pakistan first appeared on Sindh Courier.

By Nasir Aijaz

Installed close to St Paul’s Cathedral at a hilltop in the Old Bailey Street of London, the Figure of Justice, or Lady Justice, is conventional in being a powerfully built woman, almost an Amazon, fully draped, and carrying her symbols of Sword and Scales.

It’s said that as per Greek Mythology, the Statue of Justice is blindfolded that symbolizes the dispensation of justice without fear or favor and without discrimination of rich and poor, while scales, held in her hand is the message to maintain balance while listening to both the parties in litigation. The sword, held in her other hand is the symbol of authority for punishing the person proved guilty. The Lady Justice has a snake beneath her feet and it represents the corruption – and it means that the justice would not allow any kind of corruption and would crush the snake of corruption to ensure that justice is dispensed.

The justice in this region had been a commodity that could be sold and purchased

I cannot say whether the justice systems in European or other countries ensures dispensation of justice according to Greek Mythology, but the justice system, we inherit since the centuries in this part of world, had been working utterly in violation of the principles of justice envisioned in Greek Mythology. Edifice of Justice System in our country and other parts of subcontinent is erected on quagmire of corruption and dishonesty and is infamous for its cruelty and judicial killings. The justice in this region had been a commodity that could be sold and purchased.

Believe me that I have not passed these comments about the justice system in Hindustan on my own, but a voluminous book ‘Bombay in the Making – 1661-1726’, authored by Phiroze B. M. Malabari and published 113 years back in 1910 by a London publisher, narrates the history of judicial corruption in this region. The author was Deputy Registrar (Appellate Side) Bombay High Court. The book is mainly a history of the origin and growth of judicial institutions in the Western Presidency from 1661 to 1726. Introduction of the book is written by Sir George Sydenham Clarke, the then governor of Bombay.

While going through this book I found the references to the rule by Khilji, Tughlaq and Ghauri dynasties in Hindustan, having a faulty, corrupt and cruel justice system that had failed to provide cheap justice to the general public. The book says that justice during the Mughal rule in Hindustan was nothing but a commodity to be purchased from the market.

King Zaheeruddin Babar, who founded the Mughal Kingdom in Hindustan, was said to be the fond of beheading the people, but couldn’t rule the Hindustan longer than five years. He defeated Ibrahim Lodhi on April 21, 1526 at Panipat and died on January 5, 1531. During his brief rule, he couldn’t develop his own justice system and depended on the system introduced by Lodhi dynasty. Humayun, who succeeded his father Babar, too was unable to introduce any new justice system, as he spent all the time defending his rule and himself against the attacks by Sher Shah Suri. He used to take refuge in Sindh and other places for years. Reforms in justice system could be introduced only when Humayun’s son Akbar was crowned at the age of 13 in 1556. For time being, he continued the old justice system headed by Sheikh-ul-Saddar, which means the Chief Scholar, who was empowered to define or interpret the Shariat (Islamic Injunctions) and issuing the Fatwa or decrees as per Shariat. At a later stage when some liberal people like Abul Fazal joined Akbar’s Darbar, certain changes and reforms were brought about in the justice system of Hindustan.

“The officials of the justice system as well as the law, both could be sold and purchased. Corruption was the order of the day. Nobody could keep the check on corruption and wrongdoings of Qazis and Muftis”    

As per new justice system introduced under the ‘Aien-e-Akbari’ (Constitution of Akbar), an official with title of Meer Mahaal (Meer, Chief, and Mahaal, a particular area) was appointed in every street or locality or village to resolve the disputes on the spot being the head of village or locality. Meer Mahaal was made subordinate to a Kotwal, a police official, and used to assist him in maintaining law and order. Moreover, Qazis (Judges) were also appointed by the king to dispense justice in civil and criminal cases while Muftis were empowered to execute the verdicts of Qazi and Faujidar and Sipahsalars were deployed for execution of any verdict. Any person, affected by the verdict, had the right to appeal to the king, and the king would listen to them summarily at the Darbar especially summoned on daily basis.

But, despite the reforms introduced by Akbar, massive corruption prevailed in his justice system. Phiroze B. M. Malabari, in his above mentioned book writes, “The officials of the justice system as well as the law, both could be sold and purchased. Corruption was the order of the day. Nobody could keep the check on corruption and wrongdoings of Qazis and Muftis.”

Malabari further writes, “Beheading the Hindus on the fake allegations of blasphemy was common, as the Sheikh-ul-Saddar was more powerful than the king in the matters related to the religion. In such a situation, when King Akbar felt handicapped, he, at one stage, had to remove all the Qazis and Muftis from their offices. Sheikh-ul-Saddar Abdul Nabi, who acted as Qazi-ul-Qazat or the Chief Justice, was so powerful that he didn’t obey the King’s orders, and sentenced a Hindu Brahman to death over the allegations of constructing a temple and uttering blasphemous words. In view of such a situation, King Akbar had issued orders to establish separate courts with Hindu judges for Hindus but his orders could not be implemented.”

After the Akbar, his son Jehangir was crowned on January 3, 1605 and ruled the Hindustan for 22 years till 1627, but being indifferent to justice system, the same system continued without any reform. The official history of King Jehangir claims that he hanged a bell at the gate of his palace so that the people would ring the bell and get the justice from the King but all these stories are nothing but a piece of   ostentatiousness. “Only the rich and influential persons could get the justice during the Jehangir’s rule,” Malabari writes.

Shahjehan, who invaded his own father Jehangir, is known for construction Taj Mahal and other historic buildings, but the facts is that history of his entire rule from 1627 to 1658 is stained with human blood because he slaughtered every person who could pose threat to his rule, and even killed his relatives. But as it’s said ‘What Goes Around, Comes Around’, fight among his own sons broke out for power when he had fallen ill in September 1957. Aurangzeb, his own son, imprisoned in Agra Fort and enthroned himself on July 31, 1658. The ailing Shahjehan died during confinement in 1666.

‘Muslim Qazis played with the law and ‘dispensed’ justice to only those who bribed them more than others’

Aurangzeb emerged as extremist ruler, not for any love for religion, but for the sake of power, and having control over the general public by creating terror. His religious extremism and lust for power could be judged from the fact that he got his own brother Dara Shikoh sentenced to death through a court on the allegation of being infidel. Historian Phiroze Malabari writes that only the Shariat Courts were established during the rule of Aurangzeb.

Phiroze Malabari elaborates further. He refers to Captain Alexander Hamilton, who in his book ‘A New Account of the East Indies’ states that ‘Muslim Qazis played with the law and ‘dispensed’ justice to only those who bribed them more than others’.

“Here, the justice is sold for money” was the remark made by Captain Alexander Hamilton.

Phiroze Malabari says that there were several stories of corruption of the Muslim judges.

We cannot find a single sentence in praise of judicial system and the Qazis in the history of all the six Mughal Kings. Dr. Muhammad Muneer, Associate Professor and Scholar of International Islamic University, who was also the Head of Shariat Faculty, in his research paper, while referring to a book authored by Dr. Ashok Kumar Jain in 1966 and another book authored by Jadu Nath in 1972, writes:

“During the Muslim Kings, the Qazis were more powerful than the rulers and there was no transparency in dispensing the justice.”

Some historians write that during the Mughal rule, the Qazis used to keep twenty five percent of the fine amount imposed on any person ‘found guilty’. They would issue verdict in favor of those who would offer bribe more than the other party in litigation.

The Portuguese had established High Court and a Supreme Court in their area, but their judiciary was notorious for misdeeds

When the Mughal Kingdom in Hindustan weakened, the Portuguese stepped in. The influx of Portuguese started when the Vasco da Gama anchored at the Malabar Coast on May 20, 1498. After battling for a few years, the Portuguese gained strength to such extent that they conquered Mumbai and Goa and appointed their own Viceroy on March 25, 1505. The Portuguese era was also not good as regards to dispensing the justice. Phiroze Malabari quotes an example of Portuguese justice system in Mumbai according to which no action was taken against a murderer, who was son of a priest, and the magistrate had set him free.

The Portuguese had established High Court and a Supreme Court in their area, but their judiciary was notorious for misdeeds. Even the Portuguese citizens had sent several complaints to the King of Portugal in writing against the judges. In 1547, a Portuguese wrote to the King that the Supreme Court, established by the King himself, is unable to dispense justice. Another person, Jona D’ Castro complained to the King in these words, “The Supreme Court in India is extremely unnecessary, as it will prove harmful not only for this country but to your interests also. The people, appointed here from Portugal as the Justice, look like they had been starving there, who do not attach importance to any other thing except amassing the wealth through illegal means.”

The Portuguese officers used to shoot the innocent people dead and the courts never took it serious           

 At that time, there were a number of lawyers and the brokers, who were infamous of their greed for money and the people were cynical to them. The Portuguese judges often didn’t pay importance to the orders of their own King. The entire history of Portuguese rule in Hindustan is blood-stained, as the Portuguese officers used to shoot the innocent people dead and the courts never took it serious.

The receiving kickbacks in judicial matters continued even in the days of East India Company. The evidence in this regard were found from the archival record of the court established in Mumbai in 1726.

The British didn’t like the local courts, particularly those established by Muslims. Phiroze Malabari writes that it often happened that British officers rejected the verdicts of local courts and imposed their own decisions or sometimes they used to silence the Qazis by bribing them. Once, when the East India Company wanted fortification in Madras and Kolkata in the last part of seventeenth century, the local people raised objections. The people approached to the Nawab who sent Qazis for dispensing justice to the locals but the British officials silenced the Qazis by paying heavy bribes.

“Mehmood Begra was so cruel that at night he would spit on the face of the person whom he wanted to punish with death sentence, and would kill him before it dried up”

Although, the British were themselves corrupt, but they have openly authored books on corruption of Mughal era. Alexander Hamilton writes that when the British landed in Surat in early seventeenth century, the Mughal Kingdom was still strong but they had a very bad governance and the government officials exploited the general public by offering bribes to the Qazis. “Be it the King or the Princes, they kept the law always in their own pocket, and used to silence the Qazis through bribes,” he wrote.

The British had established their first trading factory in Surat. At that time, Mehmood Begra was the ruler of that region, who would always be seen chewing the betel nuts. “Mehmood Begra was so cruel that at night he would spit on the face of the person whom he wanted to punish with death sentence, and would kill him before it dried up,” Hamilton writes.

Phiroze Malabari has also quoted an incidence narrated by an English officer Anderson. He writes, “The Mughal Governor of Surat had called a group of some dancing girls to his palace but they refused to visit the palace because of low compensation they were paid during previous visit. Enraged by the refusal, the Mughal Governor got the dancing girls kidnapped and dragged them in front of British officers and traders and then beheaded all of them.”

These are just few glimpses of judicial corruption and killings having taken place during the period from 1661 to 1720, but these happenings did not end there. Judicial corruption and killings continued during later centuries, and even today, the justice is like a commodity, being sold and purchased. The Qazis and Qazi-ul-Qazat (Judges and Chief Justice) of today are selling the justice for their luxuries and greed of wealth. We can see this in our own country where the judges, from lower courts to apex courts, are ever ready to be sold for financial benefits, and are issuing verdicts in favor of rulers to legitimize their wrongdoings. They have surpassed the limits to the extent that they are issuing political statements.

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Nasir Aijaz is a Karachi-based senior journalist, and author of nine books on literature, language and history. He can be accessed at nasir.akhund1954@gmail.com

The post History of Judicial Corruption first appeared on Sindh Courier.

Amjad Bhatti

The military’s hold over the Pakistani judiciary is explained by a reading of deep history. But there is no reason why colonial-era relationships should define the present of future of Pakistan. Carefully cultivated by the Raj, the institutional sisterhood between the army and judiciary in colonial India was shaped by the socio-strategic rationale of an extractive state. If Robert Clive was the conqueror with the sword and musket, Warren Hastings, British India’s first governor-general, was the architect of executive control over the judiciary. The legacy of what Hastings wrought is still evident in the region, more sharply in Pakistan.

The solidifying of the Raj began with the Regulating Act of 1773. This legislation not only made the East India Company responsible to the British Parliament, but also created the office of the governor-general, with four British councilors. A Supreme Court was simultaneously established in Calcutta, with a chief justice and three judges. In 1775, in perhaps one of the first recorded examples of a South Asian judiciary in service of the ruler, Sir Elijah Impey, the first chief justice, ordered the execution of an influential Brahmin named Raja Nand Kumar, who had accused Governor-General Hastings of taking bribes from the widow of Mir Jaffar and other officials. Hastings had then retaliated by using another Indian, one Mohan Parsad, to bring a case of forgery against Kumar, who was swiftly convicted and executed.

Charles Cornwallis, in power from 1786 to 1793, thereafter created tiers in the Subcontinent’s judiciary, by setting up provincial courts in Patna, Calcutta, Murshidabad and Dhaka, each under the charge of a British judge. Alongside this institutionalization of the judiciary, the governor-general, in a bid to strengthen the imperial structure of control, was empowered to override the majority of his council and act on his own. This historic law, passed in 1786, also enabled the offices of the governor-general and the commander-in-chief to be jointly held by the same official.

During the 17th century, the English philosopher John Locke had famously advocated for the separation of powers, in order to make the various organs of government accountable. But in India, this remained a significant bone of contention, even between British administrators.

A detailed study by the longtime British Library archivist Richard J Bingle on the governor-general, the Bengal Council and the civil service of 1800-1835 suggests that the most obvious source of leadership in this set-up was the acknowledged head of that government, the governor-general himself. This individual could now overrule his council, enforce his will on the subordinate presidencies, and could advance or hinder the careers of civil servants. Bingle notes that given these powers, the governor-general, surrounded by legions of subordinates, resembled “a general leading his troops or a politician leading a party”.

Executive machinations

Ironically, the absolute power vested in the representative of the crown in India during the 18th century was a significant deviation from the 13th-century Magna Carta, the English charter that required the king “to renounce certain rights, respect certain legal procedures and accept that his will could be bound by the law”. This blanket indemnity and centralized power given to the governor-general in India ultimately underpinned the later political and legal developments in the Subcontinent.

During the 17th century, the English philosopher John Locke had famously advocated for the separation of powers, in order to make the various organs of government accountable. But in India, this remained a significant bone of contention, even between British administrators. One of the most well-known instances of colonial power-mongering was that between George Curzon, the Indian viceroy, and Herbert Kitchener, who became commander-in-chief of the Indian Army in 1902. When General Kitchener began re-organizing the army, he used his new powers to deflate his longtime opponent, Curzon. Even as the latter wanted the position of commander-in-chief to be subordinate to that of the viceroy, the Indian Secretary of State, John Fremantle Brodrick, pushed for the commander-in-chief to report to his office. This tussle subsequently caused Curzon to resign from his post, and offered a prominent instance in which the military prevailed in its collision with the civil establishment.

The Rowlatt Acts of 1919 also provide for a greater understanding of the judiciary-executive interface in colonial India. After World War I, Frederic Thesiger, the viceroy at the time, appointed Justice Sydney Rowlatt chairman of a committee to look into purported links between political militancy in Punjab and Bengal with the governments of Germany and Bolshevik Russia. On the advice of that committee, the government subsequently passed the namesake legislation, under the auspices of which common citizens could be arrested for political offences and imprisoned without trial. The imposition of the draconian Acts triggered an angry mass movement across India, and the British administration eventually imposed martial law in several places. One of those was Punjab, where the bloodbath at Jallianwala Bagh in Amritsar took place just a month later.

Defining necessity

The legacy of intra-institutional conflict, military dominance in the sphere of governance, and colonial codification of law continued into postcolonial South Asia. Analyzing emergency and preventive detention in India, the British scholar J Duncan M Derrett suggests that a happy marriage between customary and English Common Law could have been worked out in the region as early as the 1950s, if the Subcontinent’s independence fighters had come to realize that the Anglo-Indian legal system they had inherited – and which to a certain degree had educated and prepared them for their fight – would not be as appropriate after the British departed. This prophecy was particularly applicable to Pakistan, which saw the resumption of the office of governor-general, filled by Mohammad Ali Jinnah, indicating the significance of the entrenched colonial architecture of autocratic rule. From 1947 to 1956, the country was headed by four governor-generals – Jinnah, Khawaja Nazimuddin, Malik Ghulam Mohammad and Iskandar Mirza.

Malik Ghulam Mohammad, then governor-general, dissolved Pakistan’s first Constituent Assembly in 1954, and imposed martial law. The speaker of the assembly, Maulvi Tamizuddin, challenged the decision, and although the Sindh High Court ruled in his favor, Chief Justice Mohammad Munir thought otherwise. In his verdict, Munir declared that it was necessary to ‘go beyond’ the Constitution – to what he claimed was the Common Law, as well as to general legal maxims and to English historical precedent. In his judgment, Munir relied particularly on two old maxims. The first was proffered by a medieval English jurist named Henry de Bracton, who wrote, “That which is otherwise not lawful is made lawful by necessity.” The second was from ancient Roman law, and suggested that, “The well-being of the people is the supreme law.” Munir’s verdict subsequently set the precedent for the infamous ‘doctrine of necessity’ as legal justification for all subsequent martial laws in Pakistan.

In a continuation of a ‘vertical’ power structure, Pakistan’s second imposition of martial law was declared by General Ayub Khan in 1958, and through the Laws (Continuance in Force) Order it was made clear that no writ could be issued against the Chief Martial Law Administrator, or anyone exercising powers or jurisdiction under his authority. Calling into question the proclamation itself, or any related order made by a special or summary military court, was prohibited.

When Pakistan’s fourth martial-law period was imposed by General Zia ul-Haq, on 5 July 1977, a whole host of legislation – including the proclamation of 5 July and all laws made thereafter – were declared instantly valid.

Martial law was next imposed in Pakistan in 1969 by General Yahya Khan. At that time, it was again pronounced that no judgment or order could be issued against the Chief Martial Law Administrator or his subordinates. It was stipulated that ordinances by both the president and governor were not subject to time limits, and, as with the previous martial law, no court could call into question the proclamation.

When Pakistan’s fourth martial-law period was imposed by General Zia ul-Haq, on 5 July 1977, a whole host of legislation – including the proclamation of 5 July and all laws made thereafter – were declared instantly valid. Judges who took their oaths under the provisional constitutional order (PCO), were subsequently bound by the provisions of the PCO, and could not question the validity of its provisions. Gen Zia’s actions also set in motion what is by now a longstanding tradition in Pakistan, of judges refusing to submit to the PCO. At that time, four Supreme Court judges and 11 High Court judges refused to take oaths under the new stipulations.

Pakistan’s fifth period of military rule came in 1999, when yet another PCO was promulgated by General Pervez Musharraf, who proclaimed a state of emergency and proceeded to assume the office of ‘chief executive’. The PCO maintained that all courts in existence would continue to function and to exercise their respective powers and jurisdiction – provided that the Supreme Court, High Courts and all other courts gave up the power to make any order against the chief executive. Again, six judges, including Chief Justice Saeeduzman Siddiqi, refused to take oaths under Gen Musharraf’s year-2000 PCO.

Judicial pragmatics

This long history of martial law notwithstanding, Pervez Musharraf has by now proven himself unique even in the annals of Pakistani military rule. On 3 November 2007, he gained the dubious distinction of becoming the first autocrat to have pronounced two PCOs during the course of his rule, the second taken as a pre-emptive measure to counter a probable Supreme Court verdict against his eligibility to run for president while still in uniform. The subsequent defiance of the judges and lawyers is now well known and applauded, with 63 out of 95 judges refusing to take oaths under the PCO – a move that has since virtually paralyzed the Supreme and High Courts.

Gen Musharraf, meanwhile, cultivated a new judiciary by picking up consenting judges, and technically secured legitimacy from this kangaroo court.

While the widespread lawyers’ movement throughout the larger part of 2007 for the restoration of judiciary certainly destabilized the Musharraf regime, mainstream political parties, dictated by the pragmatism of power politics, have remained cautious about fuelling the people’s resistance movement. Thus, over December 2007, the fervor was overtaken by election fever, and the lawyers’ movement gradually became more isolated.

Gen Musharraf, meanwhile, cultivated a new judiciary by picking up consenting judges, and has since technically secured legitimacy from this kangaroo court. But in so doing, analysts note that this incumbent judiciary has once again fallen back on the ‘doctrine of necessity’, reaching back to Henry de Bracton and Justice Munir, and has made it even easier for military adventurism in the future. Thus groomed under a certain kind of judicial pragmatism harking back to the colonial era – rule by law instead of rule of law – Pakistan’s judiciary has essentially been reduced to a role of an intermediary for martial rule. In so doing, it has become instrumental in validating institutional trespassing by the Pakistan Army.

The contours of a future politic, defined by institutional autonomy and separation of powers, are not currently visible in the Pakistani murk. Autocracy and despotism have gained more and more currency in the affairs of state. Today, the system continues to resemble the colonial set-up of old, with “the general leading his troops or a politician leading a political party”. The General Kitcheners of the future look set to continue to unashamedly take over the Lord Curzons of Pakistani politics. Meanwhile, internal colonialism continues to be deployed to perpetuate the elitist interest in Pakistani politics, and the masses, as modern subjects, continue to matter little.

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Amjad Bhatti is an Islamabad-based journalist and policy advisor with the Rural Development Policy Institute.

Courtesy: Himal Magazine (Published on Dec 10, 2008)

The post The colonial burden of Pakistan’s judiciary first appeared on Sindh Courier.

YASSER KURESHI

One of the most consequential features of Pakistan’s contemporary political system has been the emergence of the superior judiciary—made up of its provincial high courts, the federal court of Islamic law, and the Supreme Court—as an assertive and active center of power. Historically, Pakistan’s military was the country’s dominant power center, but with elected institutions and political parties pursuing more governing space, inter-institutional conflict has been the norm. In this competitive space, Pakistan’s superior judiciary has played a central role in Pakistan’s political system, arbitrating contestation between political elites and state elites.

In the past fifteen years, however, the superior judiciary has moved beyond just arbitrating political disputes to playing a tutelary role of its own within the political system: constraining the authority and vetoing the policies and actions of elected institutions in order to shape politics and policies in line with its own preferences. This newfound initiative has meant the judiciary frequently opposed, constrained, and undermined elected and unelected institutions. Opposition parties and state officials hoping to challenge civilian and military governments have turned to the increasingly assertive courts.

The superior judiciary’s central place and tutelary ambitions in Pakistan, and the challenges the body faces in its relationships with state institutions and society, were most evident in the events surrounding the end of former Prime Minister Imran Khan’s government this year. The Supreme Court compelled Khan to face a parliamentary no-confidence vote from a coalition of opposition parties by ruling that his efforts to block the vote and call early elections were unconstitutional. The decision polarized public opinion between those who thought the court protected the constitutional order and those who viewed the move as “a judicial coup.”

Understanding this decision and its political impact requires examining how the superior judiciary evolved into and operates as a more independent and assertive actor. Through changes in the judiciary’s structure and culture, the superior judiciary has joined the military as a key, nonelected power holder. It alternates between confronting, constraining, and collaborating with elected and nonelected centers of power as it seeks to leave its imprint on politics and policymaking, while political and military elites work to co-opt or control judges in order to align the judiciary’s burgeoning authority and ambition with their own interests and ambitions. This interplay shapes the contours of Pakistan’s politics. However, the judiciary’s interventions also raise expectations and generate political discontents, creating a complex blend of power and vulnerability from growing judicial assertion.

INSIDE THE JUDICIARY

Why did the judiciary emerge as an assertive and active center of power in Pakistan’s politics after a history of collaboration with, and deference to, the powerful civil-military bureaucracy?

First, a combination of constitutional articles and judicial innovation empowered the judiciary to intervene in the actions of other branches of government. The 1973 Constitution enhanced the judiciary’s powers of review. The Constitution granted the high courts the jurisdiction to enforce the observance of fundamental rights by state institutions. The Supreme Court could now also make orders on questions it deemed of “public importance” with reference to enforcement of fundamental rights. Public interest litigation began in the late 1980s and advanced significantly after 2006, becoming a tool the court has used to intervene in the domains of the executive and legislature in the name of public interest. The chief justice began taking on cases suo moto (in the absence of a petitioner), often based on newspaper and television reports. The discretion about when to use suo moto powers lay with the chief justice, enabling them to respond to popular sentiments and maximize the court’s visibility and impact.

Second, the judiciary separated itself from the executive, taking control of judicial appointments from the executive. The formal role of executive institutions was first reduced through judicial action in the 1990s and then again through a constitutional amendment in 2010. The Judicial Commission for handling judicial appointments and promotions is composed of multiple stakeholders, but it is dominated by the chief justices of the Supreme Court and high courts.

Third, high court judges are primarily recruited from a legal profession where the legal culture has increasingly eschewed procedural restraint and favored confrontation with executive leadership, whether elected or military. In the democratic decade of the 1990s, where political parties were weakly institutionalized and inter-institutional conflict was the norm, the fragmented political landscape and growing prominence of courts as sites for managing political disputes generated a perception among judges and lawyers regarding the limited legitimacy of the state’s political leadership and the potential for the judiciary to shape national politics and policies. This combination—new jurisdictional discretion, executive separation from the judiciary, judicialization of politics, and a shifting legal culture—helped move the judiciary in a more ambitious, confrontational direction.

With the judiciary impacting and intervening in political processes and outcomes, the role and authority of chief justices has become especially significant. Beyond public interest litigation and judicial appointments, the chief justices of the high courts and Supreme Court also came to decide when cases would be accepted for hearings and how many and which judges heard those cases. Thus, chief justices can set their court’s agenda and indirectly impact case outcomes through bench selection. Given the judiciary’s centralized structure, a pliable chief justice co-opted by the military or a political party can now significantly impact the jurisprudence of a particular court.

However, the judiciary’s close relationship with bar associations complicates the efforts of military and political elites to co-opt and control the judiciary. As judges train and socialize as professional lawyers, the lawyers of the bar are the primary audiences with which judges seek to build their reputations. The bar has become politically engaged and effectively mobilized around political and professional issues. The bar’s propensity for collective action and disruption was most apparent in the Lawyers’ Movement in 2007, and it can act as a counterweight against efforts by political and military leaders to tame the judiciary. Recognizing this, political parties and the military increasingly expend their efforts to pressure and persuade bar leaders to indirectly influence judges. The close, though often antagonistic, ties between the bar and the bench as well as the overlapping legal culture have each played some role in shaping the judiciary’s increasingly confrontational direction.

THE JUDICIARY AND THE TWO EXECUTIVES

How did shifts within the judiciary impact its relationship with executive institutions? Historically, the superior judiciary was seen by democrats as the junior partner of the military, providing the military’s political actions with legal cover. During the 1990s, Pakistan’s national politics were shaped by relationships among three offices that came to be known as the “troika”: the prime minister, the president, and the chief of army staff. The clashes between the elected executive office led by the prime minister and the unelected executive leadership in the presidency and the military regularly resulted in constitutional disputes until the 1999 coup through which General Pervez Musharraf took over the presidency.

After Musharraf’s exit and with the return of elected civilian rule, judges began to play a tutelary role of their own in the political system. 

From the 1990s onward, for the reasons outlined earlier, the courts gradually began to chart a more independent and interventionist direction, culminating in a confrontation between the superior judiciary and Musharraf’s regime in 2007. An interventionist Supreme Court challenged the regime’s core interests, including Musharraf’s power to remain president while being chief of army staff, prompting the regime to suspend Chief Justice Iftikhar Muhammad Chaudhry and attempt to purge the judiciary. Judges resisted, and lawyers mobilized in support of the superior judiciary, galvanizing a national movement for democracy that led to Musharraf’s downfall. The court’s resistance and impact on Musharraf’s regime solidified the superior judiciary as a power center in its own right.

After Musharraf’s exit and with the return of elected civilian rule, judges began to play a tutelary role of their own in the political system, challenging what they saw as the excesses and corruption of Pakistan’s other power centers. A “new troika” emerged in Pakistan’s democratic politics: the prime minister, the chief of army staff, and the chief justice of Pakistan. Shifting alignments and conflicts between these three officeholders shaped national politics during this decade. The superior judiciary, especially the Supreme Court, adopted the mission of improving governance and combating corruption by intervening in, and frequently overruling, bureaucratic transfers and postings in order to limit the interference of elected politicians in unelected bureaucracies. The courts also formulated policy on socioeconomic issues and went after the political leadership of the ruling parties, the Pakistan People’s Party (PPP) and the Pakistan Muslim League Nawaz (PML-N), in corruption cases. The Supreme Court’s focus on political corruption and expansive interpretation of its authority led to the removal of two elected prime ministers, Yousuf Gilani and Nawaz Sharif. While political and administrative corruption were serious issues that needed to be dealt with, repeated judicial interventions in the domain of executive and legislative institutions undermined elected civilian supremacy. In contrast, there were relatively fewer confrontations between the military and judiciary after 2010. The Supreme Court not only enabled the military’s role in internal security as part of the war on terror, but it also gave itself a role in overseeing aspects of these operations. Courts attempted to establish certain redlines against political interference by the military, even charging the now-deposed Musharraf with treason for his past actions, but the courts did not push for the implementation of military-related judgments the way they did in civilian government–related judgments.

The judiciary’s stance against the military’s political interventions and its interference in the civilian executive and legislature were the essential pieces of its jurisprudential strategy to carve out a role as the country’s legitimate intervening authority. It adopted the military’s self-serving, anti-corruption rhetoric and used constitutional and popular support to legitimize itself in this role. The courts’ tactics, combined with their softer approach toward the military, left democracy unconsolidated and after 2017 weakened the system of elected government and facilitated the military’s return to political primacy—to the detriment of both democracy and judicial independence.

THE JUDICIARY AND THE SAME-PAGE REGIME

In 2017, the military leadership, several senior judges of the Supreme Court, and the political party Pakistan Tehreek-e-Insaf (PTI)—developed a consensus that different players in the political system needed to be brought onto the same page with institutional stakeholders aligned around a common platform. These stakeholders agreed that the root of Pakistan’s problems was a corrupt political class personified by the leaders of the mainstream political parties (the PML-N and the PPP). The solution was to rescue state institutions from their control and influence, by any means necessary.

From 2017 to 2018, the Supreme Court’s anti-corruption jurisprudence focused on the PPP and PML-N, often hearing petitions brought against them by PTI members.

From 2017 to 2018, the Supreme Court’s anti-corruption jurisprudence focused on the PPP and PML-N, often hearing petitions brought against them by PTI members. This concentration led to the disqualification of these party’s leaders from political office, including Sharif. Led by Khan, the populist PTI benefited from these disqualifications. The party hitched its wagon to the court’s interventions, using the court’s judgments to validate PTI claims that mainstream political parties were corrupt. Khan’s popular appeal, the Supreme Court’s anti-corruption jurisprudence, and the military’s efforts to engineer the election in the PTI’s favor helped ensure the party’s victory in 2018. With the elected, military, and judicial leadership aligned around key political questions, the new political arrangement was popularly known as the same-page regime. Under the PTI, military authority and influence across state institutions grew substantially, and democratic backsliding took hold with increasing suppression of opposition and dissent. It seemed the new troika in Pakistani politics was the prime minister, the chief of army staff, and the director-general of the Inter-Services Intelligence.

The military was happy to allow the assertion of court powers as long as judges exercised those powers against the elected executive and legislature. While some judges willingly aligned with the military in regulating political branches, judges also came under the growing influence of an increasingly authoritarian executive and its surveillance apparatus. As the public profile of judges grew, they became more vulnerable to threats from executive agencies holding information that could tarnish their reputations and careers. Through a combination of an alignment of interests between judicial and executive elites and executive pressure on judges, a sizeable faction of judges became unwilling to confront military power.

Members of opposition parties, including the PPP and PML-N, spent time in and out of court hearings and prison cells on corruption charges. With many judges under executive influence, the likelihood that a high court would uphold a detention order or reject a bail petition for an opposition member could almost be predicted by the state of relations between the ruling leadership and that opposition party. While the Supreme Court remained relatively restrained toward federal executive institutions during the PTI’s rule, it routinely clashed with the PPP’s provincial government in Sindh Province. The Eighteenth Amendment to the Constitution enhanced provincial authority and autonomy, but federal political and bureaucratic elites that opposed the PPP found the superior judiciary a useful tool to constrain Sindh’s government. During the pandemic especially, the Supreme Court chastised the PPP’s government and made observations regarding the limits of provincial autonomy. Such communication from the court chipped away at provincial discretion in critical policy areas.

However, some judges were less willing to acquiesce to autocratization. The Islamabad and Peshawar High Courts, led by more independently minded chief justices, became important sites for opposition parties and dissenters to push back against the worst excesses of executive institutions. In the Supreme Court there was growing polarization between judges who were willing to align with the political and military leadership and those who were not. These fissures became most apparent in the case of Justice Qazi Faez Isa. Isa’s willingness to confront military interference in politics made him a target, and a reference was filed with the Supreme Court to have him removed for alleged financial misconduct. During the proceedings, some judges who sided with the executive called for judicial accountability, while others who sided with Isa called this reference an attack on judicial independence. Ultimately, Isa’s supporters on the bench quashed the case against him, but polarization within the judiciary was now evident, as were the judiciary’s and the bar’s growing fatigue with increasing autocratization and the court’s legitimacy crisis caused by its enabling this autocratization.

By 2021, the military leadership’s relationship with Khan frayed, providing an opportunity for opposition parties to push back against the PTI and leading to the parliament’s April 2022 vote of no confidence in Khan. When Khan attempted to block that vote, it was apparent that the military was not siding with the PTI, but there was concern that several judges on the bench who were involved in judgments that helped bring the PTI to power might still rule in the PTI’s favor. Khan’s defense for blocking Parliament’s vote rested on flimsy legal grounds, including foreign conspiracy allegations, restrictions on judicial power to intervene in parliamentary matters, and the necessity of allowing elections in the so-called national interest. But the tutelary court was disinclined to accept limitations on its prerogative to intervene in parliamentary matters. And given that the foreign conspiracy allegation remained unsubstantiated, and that there was a widespread legal consensus that Khan’s actions amounted to an attack on the constitutional order, ruling in Khan’s favor would have further damaged the court’s legitimacy with the legal community. Bar leaders and several judges pushed the chief justice to take notice of Khan’s actions. The court’s reopening at midnight on the night of the vote, on the Supreme Court Bar Association’s advice, was intended as a show of strength by the court to enforce compliance by a recalcitrant PTI. But it convinced PTI supporters of judicial bias.

The judiciary’s tutelary role and associated political interventions helped to both establish and dismantle the same-page hybrid—but they also exposed the judiciary to threats to its authority and legitimacy.

TOWARD ELECTIONS AND BEYOND

Moving forward, the courts may continue to play a critical role in shaping the rocky road to Pakistan’s next elections and beyond. When courts wade into the resolution of major political questions, some stakeholders are likely to be disappointed by their decisions; judges risk damaging their credibility and legitimacy with those constituencies. As Khan’s supporters mobilized around the country after his ouster, Khan questioned the court’s motives, leading PTI supporters to enact a smear campaign against judges. Large segments of the bar saw the court’s actions as an affirmation of constitutionalism in the face of a populist assault on constitutional norms. However, outside the legal community, Pakistan’s broader urban middle classes have long supported Khan’s anti-corruption populism. Thus, judges will have to balance the conflicting expectations of their core constituencies: their professional networks in the legal community and their social networks of urban, middle-class households.

Judicial reputations and legitimacy are being tested by a range of political litigation coming to the courts during this complicated and contested transition. Already, we have seen legal proceedings over the chief ministership and governorship in Punjab, the fate of elected representatives who turn on their party’s leadership, the delimitation process for electoral constituencies, and the treatment of PTI staff, to name a few. As the PTI amplifies its claims of a foreign-instigated conspiracy and demands immediate elections, the PTI is inviting courts to review the judgment on the no-confidence vote, proceed on corruption charges against PML-N leaders, challenge the electoral commission, facilitate prompt new elections, investigate Khan’s allegations of a foreign conspiracy, and ensure Khan can hold protests and sit-ins in the capital city unencumbered. Meanwhile, as the new PML-N-led government seeks to consolidate power, it is looking to pursue charges of corruption and treason against PTI leaders in the courts and wants courts to handle PTI petitions in ways that allow for stability in the political transition.

The PTI has honed a strategy of pressuring judges through social media. As the party files court petitions, its social media activists cast aspersions against judges for not taking up their petitions promptly or not giving them a fair hearing. Pakistan’s unelected judges and generals are less vulnerable to electoral pressures than they are to pressures from their social, professional, and institutional networks. Targeting judicial reputations within pro-PTI social networks has yielded dividends; many of the PTI’s recent petitions were heard promptly. This strategy is similar to one bar associations use: naming and shaming judges when they act against the interests of bar leaders. The current leadership of most high courts’ bar associations is opposed to the PTI (although, as time passes, more bar associations are willing to give Khan’s narrative a hearing). The growing public visibility of judges in electronic and social media has rendered them more vulnerable to reputational pressures from these constituencies.

The pressures from Khan’s effective mobilization since his removal combined with the judiciary’s continuing distrust of mainstream political parties, especially the PPP and PML-N, and an abiding judicial interest in constraining political discretion and holding politicians accountable mean that the new PML-N government cannot expect much relief from the courts. The Supreme Court, addressing Khan’s demands, ordered that there should be no withdrawal of, or government interference in, corruption proceedings against members of the new government. The Supreme Court also ruled that votes from members of a party that contradict their party leader—known as party defection—shall not be counted in a vote of no-confidence, effectively meaning that a prime minister with a party majority can never be voted out. The judges who made this ruling argued that it would deter elected politicians from supposedly trading votes for private benefits, illustrating judges’ continued distrust of politicians’ motives. Parliament has been weakened as the court has circumscribed parliamentary accountability of the political executive and weakened the model of constituency-based parliamentary representation. Military and judicial leadership appear keen on directing the state toward a political dispensation with a reformed institutional structure, perhaps with a new troika that better matches their preferences. Should the current government be replaced by a caretaker government before fresh elections, courts will likely receive petitions regarding the caretaker government’s actions from across the political spectrum, providing judges a further opportunity to maneuver political dynamics in their preferred direction—but at the risk of angering political elites aggrieved by their decisions.

Today, the government and opposition parties court the support of both the military and the superior judiciary.

The court may also hear important cases pertaining to the military, particularly regarding Musharraf’s treason conviction and the military’s internment centers and Real Estate Empire. The relationship and divisions between the civilian and military leadership will continue to inform the judiciary’s approach to these cases.

How the judiciary deals with these challenges will also depend upon judges themselves. It is apparent many judges disapprove of traditional political parties and sympathize with Khan’s anti-corruption rhetoric, even as they opposed Khan’s blatantly unconstitutional actions in April. But there are also judges who are focused on ensuring judicial independence rather than participating in further autocratization. To predict which direction courts will take, observers can look to which judges, and their associated normative positions, are elevated to positions of authority. With the current Supreme Court leadership, the trend of constraining PML-N and PPP-led political institutions is likely to continue. But the differently minded Justice Isa is designated to be the next chief justice of Pakistan in 2023. Whoever is chief justice during Pakistan’s next elections will play a critical role in defining the judiciary’s role during the elections. Beyond this transition, some judges are concerned about how enmeshed courts are in politics and policymaking, but for now, the judiciary is unlikely to walk back from this role.

Today, the government and opposition parties court the support of both the military and the superior judiciary. Political elites criticize these institutions for overreach when the institutions intervene against their interests and celebrate the role of these institutions when the institutions act in their interests. Pakistan now has two tutelary institutions: the military and the superior judiciary. Even as the military remains the more powerful one, the interests of these two institutions, their disdain for political elites, and their relationship with each other will shape Pakistan’s political future.

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Yasser Kureshi is a postdoctoral research fellow at Trinity College, University of Oxford. His book, Seeking Supremacy: The Pursuit of Judicial Power in Pakistan, is forthcoming with Cambridge University Press (2022).

Courtesy: Carnegie Endowment for International Peace (Published on June 23, 2022)

The post Politics at the Bench: The Pakistani Judiciary’s Ambitions and Interventions first appeared on Sindh Courier.

Karachi

The Sujawal was declared as the separate district carving it out from the Thatta district some eight years back on October 12, 2013 by the government of Sindh but it has not yet been granted the Judicial District, with the result that there does not exist District and Sessions Court and the litigants continue to appear at Sessions Court of Thatta.

“There are about 2300 cases pending in the court of District and Sessions Judge of Thatta out of which 1,080 cases are related to Sujawal district,” Deputy Speaker of Sindh Assembly Ms. Rehana Leghari disclosed on Thursday.

Ms. Leghari held meeting with Mr. Abdul Razzaq, Registrar of Sindh High Court in his office at Sindh High Court Building to discuss the legal and official process regarding declaring Sujawal as Judicial District and appointment of District and Sessions Judge in the district.

She said that due to non-availability of District and Sessions Judge, the poor litigants belonging to Sujawal have to travel long distances to Thatta district.

She further said that provision of necessary facilities for women litigants in the Judicial Complex Sujawal were also discussed so that the women visiting the complex could be kept safe.

Registrar Sindh High Court Abdul Razzaq assured that as soon as the Sindh government completes the process and other legal formalities, Sujawal district will be declared a judicial district.

Later, Deputy Speaker Sindh Assembly consulted Secretary Law, Ali Ahmed Baloch, at his office, regarding setting up of District and Sessions Judge Court and wrote a letter to Sindh Chief Minister in this regard. (PR)

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