JUDICIARY IN PAKISTAN
Independence of Judiciary in a Parliamentary Form of Government: A
Comprehensive Analysis
1. Introduction: Understanding Judicial Independence
Definition and Importance: Judicial independence refers to the judiciary's
ability to function impartially without influence or pressure from the
executive or legislative branches. It is crucial in safeguarding the rule of law,
ensuring that laws are applied fairly and consistently, and protecting citizens'
rights.
Relevance in Parliamentary Systems: In parliamentary democracies,
judicial independence is vital to maintain a balance of power among
government branches. It ensures that the judiciary can act as a check on the
parliament's and executive's authority, upholding democratic principles and
preventing authoritarianism.
2. Historical Context: Evolution of Judicial Independence
Early Developments in Pakistan: Since independence, Pakistan's judiciary
has faced challenges in asserting its independence, often caught between the
executive's authority and the legislative branch's power. Events like the
"Doctrine of Necessity," which justified unconstitutional acts, demonstrate
the judiciary's struggle against political interference.
Key Cases and Crises: Landmark cases such as the "Dosso Case" (1958)
and the "Zafar Ali Shah Case" (2000) highlight periods where the judiciary
upheld military interventions, reflecting its lack of autonomy and the
influence of the executive branch. These cases illustrate how judicial
independence was compromised in favor of political expediency.
3. Theoretical Framework: Separation of Powers
Concept of Separation of Powers: Originating from Montesquieu's theory,
the separation of powers aims to divide government authority among
different branches (executive, legislative, judiciary) to prevent any single
entity from becoming too powerful.
Application in Parliamentary Democracies: In parliamentary systems, this
principle ensures that the judiciary operates independently, providing checks
and balances against the legislative and executive branches. For example, in
the UK and India, the judiciary plays a critical role in reviewing laws and
government actions to ensure they align with constitutional norms.
4. The Judiciary’s Role in a Parliamentary System
Guardian of the Constitution: The judiciary interprets and upholds the
constitution, ensuring that laws passed by parliament do not violate
fundamental rights or democratic principles. For instance, in India, the
judiciary has annulled unconstitutional laws, reinforcing its role as a
protector of civil liberties.
Check on Executive and Legislative Powers: The judiciary acts as a
counterbalance to the executive's authority and parliament's legislative
power. In Pakistan, the judiciary has periodically intervened to check
executive excesses, although its independence has been inconsistent.
5. Challenges to Judicial Independence
Political Pressures and Executive Overreach: The judiciary in Pakistan
often faces challenges from the executive branch, which seeks to influence
judicial decisions or manipulate judicial appointments. For example, recent
efforts to extend the retirement age of Supreme Court judges have raised
concerns about attempts to control judicial outcomes.
Impact of Reforms and Current Developments: The ongoing debate over
judicial reforms, such as the extension of judges' tenures and changes to the
appointment process, underscores the tension between maintaining judicial
independence and ensuring accountability. Political actors often view these
reforms as tools to shape the judiciary's composition in their favor.
6. Comparative Perspective: Judicial Independence in Other Parliamentary
Democracies
United Kingdom: The UK maintains judicial independence through
mechanisms like the Judicial Appointments Commission, which ensures that
judges are appointed based on merit rather than political considerations.
Despite parliamentary sovereignty, the judiciary has the authority to
interpret laws and protect civil liberties.
India: India's judiciary is known for its activism, frequently challenging
executive decisions and legislative actions that threaten constitutional
principles. The "Collegium System" for judicial appointments is designed to
minimize political interference, although it remains a subject of debate.
Australia and Canada: Both countries have established independent
judicial appointment commissions and secured judicial tenure, creating a
strong framework for judicial independence and impartiality in decision-
making.
7. Mechanisms to Protect Judicial Independence
Judicial Appointments and Tenure Security: Establishing transparent and
merit-based appointment processes, like independent commissions, helps
prevent political manipulation. Guaranteed tenure and removal procedures
protect judges from arbitrary dismissal.
Judicial Review and Accountability Measures: Mechanisms like judicial
review allow courts to oversee legislative and executive actions, ensuring
they do not violate constitutional rights. Codes of conduct and oversight
bodies ensure judges are accountable for their actions without compromising
their autonomy.
8. Implications for Pakistan’s Parliamentary System
Impact on Democratic Governance: Judicial independence is essential for
maintaining a functional democracy in Pakistan. Without it, the balance of
power is skewed, leading to potential executive overreach and weakening
parliamentary authority.
Risks of Politically Motivated Reforms: Recent proposals to amend
judicial tenure and appointment processes could undermine the judiciary's
autonomy, affecting its ability to act impartially and independently.
Need for Transparent Reforms: To enhance judicial independence,
Pakistan must pursue reforms that emphasize transparency, meritocracy, and
accountability, avoiding changes that could compromise judicial
impartiality.
9. Conclusion: Ensuring a Balanced Approach
Balancing Independence and Accountability: While judicial independence
is critical, it must be balanced with mechanisms that ensure accountability to
maintain public trust and uphold democratic values.
Path Forward for Pakistan: Pakistan should focus on strengthening
judicial independence through clear and transparent reforms, fostering a
culture of respect for the judiciary, and ensuring that judicial processes are
free from political influence. This will enhance the rule of law and promote
stability within the parliamentary system.
