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

By Haroon Barakzai

In Pakistan’s tumultuous history, Zia regime was the real trial of judiciary. During the first few months of his rule the relationship was a pleasant one. The chief justices were appointed as Acting Governors of their respective provinces. Maulvi Mushtaq (the main player in awarding death sentence to Bhutto) was given a free hand in appointment of judges. The provisional constitutional order of 1981 emaciated the judiciary further. Then came Benazir Bhutto’s government.

During the first Benazir government (1988-1990), there was an intense fight between the president and the prime minister over the appointment of judges. The first Nawaz Sharif government (1990-1993) offered various perks and privileges to the judges of apex courts for gaining their favours. Residential plots were allotted to them and loyalty of judges was traded like goods in an open market.

During the second Benazir government most of the appointments were devoid of merit and were based mainly on nepotism and favouritism. The practice of appointing Acting chief justices to the High courts and ad-hoc judges to the Supreme Court, generally a policy of Zia, was liberally resorted to.

The judicial crisis which paved way for storming of Supreme Court on 27 Nov 1997 undermined the credibility of the judicial system in Pakistan.

The military coup of 12 October 1999 was another hurdle for the judiciary. PCO was promulgated on 25 January 2000 and Chief justice Saeed uz Zaman Siddiqui refused the oath. Irshad Hassan Khan collaborated with the military bosses and was rewarded as Chief Justice. He upheld the military takeover in Zafar Ali shah case and even Musharraf was allowed to amend the Constitution. Justice Irshad was appointed as Chief Election Commissioner after retirement and he again returned the favours by rigging the General Elections of 2002. Justice Sheikh Riaz Ahmad and Iftikhar Chaudry played a dubious role.

Justice Iftikhar Chaudhry supported the unconstitutional military takeover, the referendum and unconstitutional LFO.

The Zardari government then followed and was characterised by providing favours to the judges of Superior courts. All his corruption cases were ignored and no legal action was taken against him.

The current Nawaz Sharif Government is again trying against the so called independent judiciary. The Panama leaks case and other corruption charges will test the judicial independence. To date the judiciary is unable to function independently by upholding the notions of Transparency and accountability. The formation of JIT by the apex court confirms that either it is weak to the extent that it can’t work independently or that the judges wants to shift the burden to other institutions of the state so that in future they are able to reap the benefits provided by Elites in Pakistan.

Haroon Barakzai Lecturer IMS UST Bannu

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