The doctrine of separation of powers is a fundamental principle of modern democratic societies, which seeks to prevent the concentration of power in any one branch of government. In Pakistan, the judiciary has been a staunch advocate of this doctrine, often at the expense of the other branches of government. It has led to a situation where the judiciary is often seen as an "impatient child," asserting its authority and powers without sufficient regard for the political and social context in which it operates.
One of the key reasons for this state of affairs is the history of political instability in Pakistan. Since its independence in 1947, Pakistan has been plagued by military coups, weak civilian governments, and frequent constitutional crises. As a result, the judiciary has often been called upon to play a more active role in the country's governance. It has led to the judiciary developing a more expansive view of its role, which has sometimes put it at odds with the other branches of government.
The doctrine of separation of powers is enshrined in the Constitution of Pakistan, which provides for three separate branches of government: the executive, the legislature, and the judiciary. However, the Constitution also grants the judiciary a significant degree of autonomy, allowing it to assert its authority more forcefully than expected in other democratic countries. For example, the Constitution grants the judiciary the power to strike down laws that are deemed unconstitutional, which gives it a powerful check on the power of the legislature.
In her research paper "Empowerment without Accountability: The Lawyers' Movement in Pakistan and Aftershocks," Maryam S. Khan highlighted the issue of incongruence between empowerment and its outcomes, which poses a significant challenge in establishing a responsive and accountable judicial system. The recent actions of the Pakistani government, including the extension of former army chief General Qamar Javed Bajwa's tenure and its intervention in the legal proceedings against former military dictator General Pervez Musharraf, have resulted in a contentious relationship between the government, the Supreme Court, and the Pakistan Bar Council, as noted by the ISAS Briefs. Additionally, the issue of accountability has been complicated by political victimization, with the judiciary acknowledging that opposition parties are being backed by military agencies.
Despite efforts to establish accountability, the judiciary has sought autonomy from other state organs, opening up another debate. The US State Department has negatively portrayed the judiciary of Pakistan, stating that theoretically, the country's judicial system operates independently of the executive branch, but the reality is quite different. However, achieving autonomy with accountability can lead to positive outcomes.
In recent years, the judiciary in Pakistan has become more assertive in exercising these powers. One of the most notable examples of this was the dismissal of former Prime Minister Nawaz Sharif in 2017 on the grounds of corruption. While anti-corruption campaigners widely praised the judiciary's actions, they were also criticized by those who saw them as an overreach of judicial authority.
Another example of the judiciary's assertiveness can be seen in its use of suo motu powers. Suo motu means "on its own motion" and refers to the judiciary's power to take up a case without a formal complaint. In recent years, the judiciary has used suo motu powers to take up cases on various issues, from environmental pollution to treating prisoners in jails. While suo motu powers can be seen as a way for the judiciary to check the other branches of government, it has also been criticized for allowing the judiciary to act without proper oversight.
The judiciary's assertiveness has also been seen in its use of contempt of court powers. Contempt of court refers to any action that undermines the authority or dignity of the judiciary. In Pakistan, the judiciary has used contempt of court powers to punish journalists, politicians, and even ordinary citizens who have criticized judicial decisions. While contempt of court powers can be seen as a way to protect the judiciary's authority, it has also been criticized for stifling dissent and criticism.
Another factor that has contributed to the judiciary's assertiveness is the appointment process for judges. In Pakistan, judges are appointed by a Judicial Commission, which senior judges dominate. It has led to a situation where judges are often appointed based on their seniority and reputation within the judiciary rather than their political or social outlook. It has led to a judiciary that needs to be more in touch with the concerns of ordinary citizens and more concerned with maintaining its authority and power.
One way to address these concerns would be to reform the appointment process for judges. It could include making the Judicial Commission more representative of society and giving greater weight to potential judges' political and social outlooks. It would help to ensure that the judiciary is more in touch with the concerns of ordinary citizens and that it is less likely to act in an overly aggressive manner.
Article 175A of the Constitution of Pakistan governs the appointment of judges to the superior courts, which was inserted through the 18th and 19th Constitutional Amendments. Pursuant to this constitutional scheme, a Judicial Commission is established to nominate judges to the superior courts, with the Chief Justice of Pakistan serving as its head. The traditional process of appointing judges prior to the 18th Amendment lacked sufficient checks and balances, thereby granting the judiciary extensive authority over the appointment of judges.
The 18th Amendment endeavored to alter this state of affairs by involving Parliament in the appointment process. However, disputes concerning the appointment process continue to persist. A prominent example of such controversy is the appointment of the first female Supreme Court judge in Pakistan's history in 2022, which garnered both commendation and censure. Critics accused the ruling party and legal fraternity of disregarding seniority and merit-based criteria in the selection process.
Ongoing controversies associated with Pakistan's judicial appointment process involve allegations of political interference and a lack of transparency in the nomination and selection process. As a result, some have called for further reforms to increase accountability and transparency in the appointment process.
In conclusion, the tension between autonomy and accountability is a critical issue facing Pakistan's judiciary. The judiciary has sought autonomy from other state organs, but accountability has been challenging to establish. Political victimization and government intervention have also affected accountability. Achieving autonomy without accountability can lead to negative outcomes, making it essential to find a balance between the two. Top of Form
One of the key reasons for this state of affairs is the history of political instability in Pakistan. Since its independence in 1947, Pakistan has been plagued by military coups, weak civilian governments, and frequent constitutional crises. As a result, the judiciary has often been called upon to play a more active role in the country's governance. It has led to the judiciary developing a more expansive view of its role, which has sometimes put it at odds with the other branches of government.
The doctrine of separation of powers is enshrined in the Constitution of Pakistan, which provides for three separate branches of government: the executive, the legislature, and the judiciary. However, the Constitution also grants the judiciary a significant degree of autonomy, allowing it to assert its authority more forcefully than expected in other democratic countries. For example, the Constitution grants the judiciary the power to strike down laws that are deemed unconstitutional, which gives it a powerful check on the power of the legislature.
In her research paper "Empowerment without Accountability: The Lawyers' Movement in Pakistan and Aftershocks," Maryam S. Khan highlighted the issue of incongruence between empowerment and its outcomes, which poses a significant challenge in establishing a responsive and accountable judicial system. The recent actions of the Pakistani government, including the extension of former army chief General Qamar Javed Bajwa's tenure and its intervention in the legal proceedings against former military dictator General Pervez Musharraf, have resulted in a contentious relationship between the government, the Supreme Court, and the Pakistan Bar Council, as noted by the ISAS Briefs. Additionally, the issue of accountability has been complicated by political victimization, with the judiciary acknowledging that opposition parties are being backed by military agencies.
Despite efforts to establish accountability, the judiciary has sought autonomy from other state organs, opening up another debate. The US State Department has negatively portrayed the judiciary of Pakistan, stating that theoretically, the country's judicial system operates independently of the executive branch, but the reality is quite different. However, achieving autonomy with accountability can lead to positive outcomes.
In recent years, the judiciary in Pakistan has become more assertive in exercising these powers. One of the most notable examples of this was the dismissal of former Prime Minister Nawaz Sharif in 2017 on the grounds of corruption. While anti-corruption campaigners widely praised the judiciary's actions, they were also criticized by those who saw them as an overreach of judicial authority.
Another example of the judiciary's assertiveness can be seen in its use of suo motu powers. Suo motu means "on its own motion" and refers to the judiciary's power to take up a case without a formal complaint. In recent years, the judiciary has used suo motu powers to take up cases on various issues, from environmental pollution to treating prisoners in jails. While suo motu powers can be seen as a way for the judiciary to check the other branches of government, it has also been criticized for allowing the judiciary to act without proper oversight.
The judiciary's assertiveness has also been seen in its use of contempt of court powers. Contempt of court refers to any action that undermines the authority or dignity of the judiciary. In Pakistan, the judiciary has used contempt of court powers to punish journalists, politicians, and even ordinary citizens who have criticized judicial decisions. While contempt of court powers can be seen as a way to protect the judiciary's authority, it has also been criticized for stifling dissent and criticism.
Another factor that has contributed to the judiciary's assertiveness is the appointment process for judges. In Pakistan, judges are appointed by a Judicial Commission, which senior judges dominate. It has led to a situation where judges are often appointed based on their seniority and reputation within the judiciary rather than their political or social outlook. It has led to a judiciary that needs to be more in touch with the concerns of ordinary citizens and more concerned with maintaining its authority and power.
One way to address these concerns would be to reform the appointment process for judges. It could include making the Judicial Commission more representative of society and giving greater weight to potential judges' political and social outlooks. It would help to ensure that the judiciary is more in touch with the concerns of ordinary citizens and that it is less likely to act in an overly aggressive manner.
Article 175A of the Constitution of Pakistan governs the appointment of judges to the superior courts, which was inserted through the 18th and 19th Constitutional Amendments. Pursuant to this constitutional scheme, a Judicial Commission is established to nominate judges to the superior courts, with the Chief Justice of Pakistan serving as its head. The traditional process of appointing judges prior to the 18th Amendment lacked sufficient checks and balances, thereby granting the judiciary extensive authority over the appointment of judges.
The 18th Amendment endeavored to alter this state of affairs by involving Parliament in the appointment process. However, disputes concerning the appointment process continue to persist. A prominent example of such controversy is the appointment of the first female Supreme Court judge in Pakistan's history in 2022, which garnered both commendation and censure. Critics accused the ruling party and legal fraternity of disregarding seniority and merit-based criteria in the selection process.
Ongoing controversies associated with Pakistan's judicial appointment process involve allegations of political interference and a lack of transparency in the nomination and selection process. As a result, some have called for further reforms to increase accountability and transparency in the appointment process.
In conclusion, the tension between autonomy and accountability is a critical issue facing Pakistan's judiciary. The judiciary has sought autonomy from other state organs, but accountability has been challenging to establish. Political victimization and government intervention have also affected accountability. Achieving autonomy without accountability can lead to negative outcomes, making it essential to find a balance between the two. Top of Form