Senator Samina Mumtaz Zehri
The letter by six judges of Islamabad High Courthas opened up a new Pandora’s box in the pursuit of judicial independence in Pakistan by adopting a weird approach leaving a common conscious astray. Through paragraph eleven of the letter, honorable judges ascribe “undermining independence of the judiciary” to the “interference of intelligence operatives with judicial functions”. The very claim of these judges has sparked an unending controversy in understanding factors impeding judicial independence in actual. Back in the year 2021, Ex-Chief justice Islamabad High Court Justice Athar Minallah had admitted in his public statement that the judiciary had failed to come up to the nation’s expectations and one couldn’t claim with confidence that the institution was independent. Recalling factors affecting judicial independence he said, “Successive constitutional breakdowns and adoption of the doctrine of revolutionary legality and the doctrine of necessity, besides betraying the vision of Quaid-i-Azam Mohammad Ali Jinnah, have impeded the process to establish an order where the principles of freedom, equality, tolerance, social justice and democracy are fully observed”. Furthermore, the doctrine of independence of judiciary was seriously impacted when alarming revelations were unearthed about the backlog of millions of pending cases in our courts. The Law and Justice Commission of Pakistan, in its Bi-Annual Report of Judicial Statistics for the period from July to December 2023, revealed that 82% of the pending cases (1.86 million) were at the district judiciary level and the remaining 18% (0.39 million cases) were at the upper tier, including the Supreme Court, Federal Shariat Court, and high courts. The nature of pending cases raises eyebrows about the independence of judiciary also because they include non-political cases. According to report civil cases constitute 81% of the cases pending in the high courts, while criminal cases account for 19%. On the other hand, at the level of the district judiciary, civil cases constitute 64% of the pending cases, while the remaining 36% comprise criminal cases. That means judiciary especially superior courts have been giving weightage to political cases in speedy manner for a long time due to the overriding concerns of judges for their respective political interests.A report “Study of informal justice system in Pakistan” estimated that Pakistani courts need “15 years” to try the backlog of pending cases and there will be a condition that in those “15 years” no new case should be instituted in the courts. Normally Pakistani courts take “25 years” to decide a case and “5 years” more to execute the decree. Counting on factors marring judicial independence in Pakistan, one can easily comprehend how poor service delivery and corruption has been rampant in our courts. National Corruption Perception Survey 2023 released by Transparency International Pakistan (TIP) clearly shows the judiciary among the top three most-corrupt institutions in Pakistan.Corruption in judiciary is rampant at various levels. Former Supreme Court judge MaqboolBaqar had aptly asserted that “the judiciary is no exception when it comes to corruption, and shortcomings in the key pillar of the state has a “direct linkage” to the process of inducting judges. According to Justice Baqar, “The inductions in the judiciary have not been up to the mark [right from] our independence. There was nepotism, favoritism and sacrifice of merit soon after we inherited the Government [of India] Act 1935 after the creation of Pakistan”. This is quite unfortunate that judiciary in our historical context or since pre-partition times has not been independent. Pakistan’s judicial system was modeled after that of the United Kingdom. For financial and administrative matters, the judiciary was not independent of the executive at the time. During the civilian government period, relations between the executive and judiciary remained strained (1988-1999). The First Judge’s case, also known as the Al-jihad confidence case, is regarded as a watershed moment of judicial independence. Martial law orders issued in 2002 threatened judicial independence once more. It is pertinent to mention how efforts to restore judicial independence were initiated by parliamentary forum. Through historic Eighteenth Amendment Bill, 2010, changes were made to the conventional structure. To ensure judicial independence, the Judicial Commission and Parliamentary Committee, two legislative bodies, were formed to nominate judges to the superior Constitutional courts. However, when the Supreme Court ruled in different decisions that the Parliamentary Committee must provide reasons for rejecting the Judicial Commission’s recommendation for a judge’selevation, these constitutional bodies failed to achieve their goals. Otherwise, it would be regarded as irrational and haphazard. Although the Supreme Court of Pakistan has settled several legal issues, the power balance between the Judicial Commission and the Parliamentary Committee is still debatable. The purpose of underlining some of the potential factors confining judicial independence is to expose the fragility of the claim propounded by the 6 judges of IHC in their letter. The claim that intelligence operatives interfere in judicial functions affecting judicial independence is in fact a two-edged sword. The very claim is damaging the prestige of judiciary and our state agencies on one hand while benefitting the so called political narrative of a political party that has already been targeting agencies and state institutions for its political collapse. The letter written by six honorable judges of IHC alleging ISI Interference has left irrevocable damages on the prestige of this institution that is called one of the vital organs of the state. The resonance of this damage is manifested through global media forums especially those patronized by anti-Pakistan factions and lobbyists abroad who through their bombardment of printed and social media content have been exaggerating the contentions of this controversial letter in a manner that is showing a row between the two otherwise prestigious state institutions. The letter has become a source of malicious propaganda against our own security institutions worldwidefueling the so called effort of anti-state actors to malign our security institutions that keep on counteracting our external and internal enemies through their non-stop sacrifices.- A question also arises why Armed Forces and its institutions are always brought into controversies and become an object of blame game. The answer is very simple. Today, our country is passing through a political transition where Populism is taking its roots. The symbol of Populism is Imran Khan. And his followers everywhere through their institutions or at individual level have been trying their level best to get him off scot-free even at the cost of defaming the prestige of other institutions. The contents of the letter have actually jeopardized the very image of judiciary also among the eyes of common masses also who have to spend years in waiting for justice from these courts but are suddenly taken aback to know that the judges are actually prioritizing dispensation of justice in political cases most of the time. The issue of millions of pending cases in the high courts and even in Supreme Court of the country has already made the role of judiciary a compromised and controversial one in dealing with its exclusive mandate of dispensation of justice and upholding core human rights enshrined in the constitution of Pakistan. Why these honorable judges have never written a letter on the issue of backlog of millions of court cases of common people pending for years or even for decades? Is a burning question indeed! Theoretically, looking from a Consequentialist’s perspective, according to which “the results of the action that are looked at, not necessarily the means to produce the action”, the results produced by the action of writing a letter by six IHC judges are damaging rather than restorative and reformative for the cause of independence of judiciary. Rather than adopting a serious approach to bring grass root level and much awaited judicial reforms, working in collaboration with parliamentary forums constituted under the 18th amendment for judges’ elevation, taking emergency measures to dispose of millions of pending cases of a common people, implementing strict mechanism to uproot corruption in every tier of judiciary, depoliticizing judiciary and making every effort to restore the image of judiciary at national and global levels, these 6 judges have adopted a path to give vent to their feelings that has in turn supported the anti-state narrative of PTI and its followers inside as well as outside Pakistan besides defaming the working of our agencies and state institutions who at this very moment are the only means to safeguard our dear homeland from internal and external enemies that are apprehending the very existence of Pakistan.
