Judicial independence in Pakistan: A myth or reality? Part I

By: Haroon Barakzai

As we all know, any state has three organs; the executive, legislature and judiciary. Judiciary is the protector of fundamental rights and civil liberties of the citizens. It is also the final arbiter of the constitution and has a vital role in a democratic society. For a strong and healthy nation, an independent judiciary is of utmost importance.

Pakistan got a fair judicial system after independence having reputation for integrity and competence. The basic factor contributing to this was a fair system of judicial appointments based on merit.

Mian Abdur Rashid, the first chief justice of Pakistan, was a man of unimpeachable character and reputation. His successor Muhammad Munir made some very controversial decisions, the effects of which are still experienced by Pakistan and democracy even  today. After him, justice Shahbuddin and Alvin Robert Cornelius strived to maintain the notions of independence and integrity.

During the British Era, the judicial appointments were made with caution and care. There were basically two methods that is through Indian civil service and the prominent lawyers. In the constitution of 1956, almost the same criteria was adopted with slighter modifications. The chief justice of the apex court was appointed by the president. The other judges were appointed by President in consultation with the chief justice of the apex court.

The chief justice of the High Court was appointed by President in consultation with the Chief Justice of Pakistan and the governor of the concerned province. The method outlined in the constitution of 1956 was adopted in the constitutions of 1963 and 1973.

The participation of such high offices like president, prime minister, governor or chief minister was meant to remove any flaw, bias and ambiguity. Unfortunately, our experience in case of Pakistan tells another story. The involved offices have had repeatedly misused their power and authority. The system was never allowed to function independently.

The chief justices have by themselves tried to give favours to their relatives to the high offices of the state. The executives have tried their own means to weaken the crucial state pillar for their nefarious designs.

The process started during the Ayub khan regime. The judicial appointments during his rule were totally made on political and personal considerations. An MNA was appointed to the high Court only to gain his vote. It is widely reported that a judge was appointed on the recommendations of a Pir (spiritual leader) of Ayub Khan.

Bhutto Era was marked by a decline and weakening of judiciary. Bhutto and his government wanted a pliable and amicable judiciary with no assertive role for itself.

The famous Fifth Amendment is said to be introduced by Bhutto for the total subjugation of the judiciary. Some judges were also responsible for it.

Sardar Muhammad Iqbal the chief justice of Lahore High Court wanted to continue as CJ and repeatedly refused elevation to the Supreme Court.

The judge next to him in seniority Mulvi Mushtaq Hussain also refused elevation and was eyeing on the chief justice-ship of LHC.

Junior judges were promoted to the SC and a bad precedent was established. Factionalism and favouritism prevailed in the judiciary where everyone supported their own favourite candidates among the judges and in the bar. In 1975 there was a clash between the bar councils and the judges. The judges suppressed the criticism through repeated contempt of court against the Bar members who differed with them.

The internal bickering and acrimony helped the government to further undermine the weakening judiciary. As a result, the Constitution 5th amendment bill limiting the term of office of the Chief justices of SC and HC was introduced.

To be continued…..

Haroon Barakzai Lecturer IMS UST Bannu

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