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By Maham Nawaz
When Pakistan came into being on 14th August 1947, the Government of India Act 1935 was adopted as the country’s interim constitution. The system of government under this Act was characterized by a strong Executive (arm of the state) and a relatively weak judiciary. While the judicial structure functional under the Act remains primarily the same till date, a number of constitutional reforms, over the years, have progressively strengthened the judiciary’s position. In one of the first reforms in 1954, the introduction of the writ jurisdiction of the High Courts granted the courts a valuable role in protecting fundamental rights of the citizens as against any contraventions by the Executive.
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The Constitution of 1956 explicitly mentioned separation of the judiciary from the Executive which was an important factor in guaranteeing the independence of the judiciary among its principles of policy. Further, the Supreme Court replaced the Federal Court and, in addition to its appellate and advisory jurisdiction, was conferred with the original jurisdiction to issue writs. The Constitution of 1962 included a new procedure for removal of judges via the Supreme Judicial Council. This provided greater judicial autonomy than the previous procedure, whereby it was based on a presidential address approved by a two third majority in the National Assembly. In other terms, it represented a step-back; such as by limiting the writ jurisdiction of the superior courts. The Constitution of 1973, applicable today, was by far the most progressive. It restored the wider writ jurisdiction of the High Courts and empowered the Supreme Court to act in suo motu on matters of public importance concerning the enforcement of fundamental rights.
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In spite of these measures, the judiciary in Pakistan was traditionally seen as playing a passive role. It has been argued that the judiciary’s judgments, historically, have often supported the governments of the day. This observation has not been completely without foundation. When the Governor-General of Pakistan first dissolved the Constituent Assembly, this was upheld by the Federal Court on the basis of doctrine of necessity. This doctrine was thereafter used to validate the abrogation and suspension of the Constitution thrice by the superior courts. Perhaps it is for this reason that when the Supreme Court finally started asserting independence in 2005 under the leadership of Chief Justice Iftikhar Chaudhary. However, this did not sit well with the Executive.
It is only following the Lawyers’ Movement of 2007, leading to the restoration of judges deposed by President Musharraf, that the judiciary garnered public acclaim for demanding government accountability. Following this restoration, the judicial review became more prevalent and was used to strengthen rule of law in the country. This strengthened role of the judiciary was reflected even in subsequent constitutional amendments. One of the most significant changes has been the introduction of the new judicial appointments procedure. The 18th amendment introduced the procedure of appointments through the Judicial Commission and Parliamentary Committee, as opposed to the previous mechanism where the President had the power to appoint the Chief Justice of Pakistan along with all other senior judges in consultation with the Chief Justice. This was improved upon by the 19th amendment by increasing the number of judges in the Commission to give the judiciary an effective control over the nominations.
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Since then, the judiciary has had an increasingly proactive role in holding the governments of the day accountable, however, this role has not always remained positive. From a judiciary that mostly remained deferent to the Executive, it transformed into one which threatened to undermine the rule of law by becoming involved in matters properly within the domain of the Executive. Particularly, the Supreme Court expanded the exercise of its suo motu powers without defining any specific criteria. The issue of suo motu notices to state officials and public servants peaked under to Chief Justice Saqib Nisar’s tenure. Interpreting the jurisdiction of “right to life” as providing citizens with “access to clean water”, the court proceeded to take upon itself the responsibility of collecting funds to build dams. Judicial proceedings were mocked because adjournments were granted in return for donations to the dam fund.
It is no secret that the legal system of Pakistan suffers from a variety of problems; ranging from long delays, high pendency of cases and lack of protection for judges in the criminal justice system. It is sad to note that the judiciary failed to use its strengthened role to bring about much-needed changes in the legal system to alleviate these issues. In 2016, the Supreme Court upheld the establishment of military courts to deal with terrorism cases on the basis that the ordinary courts were not well-equipped to deal with such cases. The government had reasoned that they would use these two years to better equip the Anti-Terrorism Courts.
Despite the fact that none of these promised legal reforms were brought, the Supreme Court failed to strike down an extension of the military courts. Further, the number of cases pending in the Supreme Court alone doubled during the past five years. As per the Law and Justice Commission of Pakistan, the country currently faces its largest backlog of cases with an estimated 1.9 million cases pending in all courts. While a number of reforms to better the judicial system, in theory, may have been introduced since 1947, some of the most basic laws in Pakistan, including the Code of Civil Procedure and Code of Criminal Procedure, continue as enacted by the British with minor amendments.
In these circumstances, the current Chief Justice Asif Saeed Khosa’s resolve to ensure that the Supreme Court’s jurisdiction under Article 184(3) of the Constitution shall be exercised very sparingly and focus on judicial reforms represents a ray of hope. The model courts set as part of these reforms have already achieved resolution of 5800 criminal cases in 48 days, and zero pendency of murder and narcotics cases in six districts.
