Can Pakistan’s judiciary be truly independent?

Only through a holistic approach can we ensure that justice not only prevails but is seen to prevail.
Published May 13, 2024

Not too long ago, calls emerged from various quarters for a probe into allegations by six Islamabad High Court (IHC) judges, who decried interference in judicial affairs by the country’s intelligence apparatus. This isn’t the first time that allegations of such a nature have been aired, yet it is a good time as any to contemplate what judicial independence actually means, how it is threatened and the means to truly attain it.

While we’re on the topic, it is also important to recognise that external independence is one, and not the only factor impacting the judiciary’s independence — the others being internal and institutional independence.

It is only when all three factors are addressed in unison that a comprehensive strategy safeguarding the judiciary’s independence can be devised. Now that the issue has taken on national prominence, and the Supreme Court (SC) has taken notice of the matter, let us try and understand the concept.

External independence

Given our national dynamics, the first limb — external independence — is the most critical. Like the sturdy pillar that holds the entire edifice of justice, external independence stands tall, guarding against the shadows of unwarranted meddling.

Consider it the guardian angel of our legal sanctum, ensuring that the scales of justice tip not under the weight of external pressures, but solely by the merit of evidence and argument. It’s the shield that deflects the arrows of manipulation, preserving the sanctity of our judicial process from the clamour of nonjudicial actors seeking to sway its course.

The United Nations’ basic principles weave a compelling narrative around external independence:

“The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.”

External independence is also the subject matter before a six-member SC bench hearing petitions pertaining to allegations made in the IHC judges’ letter, which recounts seven instances of alleged interference — each a haunting reminder of the fragility of justice in the face of external pressures. These include alleged pressure tactics by intelligence officials on judges refusing maintainability of a disqualification plea against Imran Khan for concealing his alleged daughter. It also includes the alleged abduction and torture of the brother-in-law of an IHC judge as well as examples of alleged intimidation of district court judges.

In Pakistan, these events stand out like a recurring set of practices, orchestrated by those in power to sway decisions in their favour. It’s a pattern as old as time, woven into the fabric of governance.

The only way to counter this kind of interference is by the judiciary coming together and drafting a set of proposals that both curtail the nefarious designs of nonjudicial actors and introduce a retributive redressal mechanism should such cases of interference take place. We must envision a system where justice isn’t a bargaining chip but a sacred trust. Yet, as we sketch this blueprint, two critical factors demand our attention.

First, the proposals must be dynamic and capable of addressing the changing needs of society, where challenges may evolve, hence the safeguards must too. For this purpose, the proposals should be subject to periodic reviews and upgrades.

Here, the role of lawyers’ groups cannot be ignored. Bar associations claim to be guardians of the independence of the judiciary, but they repeatedly resort to thuggery and hooliganism in court over grievances with judges. Not only does this bring the legal profession into disrepute, but the threats and abuse also serve as improper interference in judicial matters.

Secondly, inclusivity must be our watchword, recognising the unique challenges faced by different tiers of the judiciary. Interference at the grassroots district courts level differs vastly from the pressures felt in the high courts or the Supreme Court. A judge’s vulnerability to external influences varies, influenced by the level of institutional support they command.

Internal independence

Internal independence necessitates the implementation of a system that ensures that judges appointed at both the lower and superior court levels are impartial and uphold the highest standards of moral conduct. As comprehensive as the proposals might be to safeguard against external interference, without impartial judges, the independence of the judiciary will remain a partially baked concept.

Even the most robust defences against external interference falter if the guardians themselves are compromised. Discipline, impartiality, and professionalism are the bedrock upon which judicial independence rests. A judge of unwavering integrity stands strong against the tide of corruption, immune to its seductive whispers. The elevation of judges has been a topic of intense discussion among academic, legal, and political circles for the past few years, garnering the interest and involvement of various civil society stakeholders.

But how do we ensure such stalwart guardianship? It begins with a meticulous selection process, a journey guided by a predetermined criterion of merit.

Take, for instance, Canada’s vision for the Supreme Court. They don’t just look at the candidates’ legal acumen; they delve into an assessment of their knowledge, skills, social awareness, sensitivity, sense of ethics, patience, courtesy, honesty, common sense, tact, humility, punctuality, communication skills, ability to manage time and workload, and the capacity to handle workload and stress. We should also aim for a similar holistic criterion.

Of course, measuring such intangible qualities is no small feat. It calls for the expertise of those who understand the nuances of human behaviour. But it’s a challenge worth embracing, for the integrity of our judiciary is a cause that demands nothing less than our very best.

Institutional independence

The third limb of the judiciary’s independence requires the strengthening of the institution itself. What good is a sturdy judge if the platform they stand upon is shaky? Institutional independence is the backbone — the state’s guarantee that the judiciary operates free from political entanglements. It’s about creating a democratic ecosystem where the rule of law isn’t just a slogan but a living, breathing reality.

Any system developed to counter unwarranted interference from nonjudicial actors would be ineffective if the institution is weak — even if the judges who constitute the institution exercise independence.

Thus, the three limbs of judicial independence must work in tandem.

Institutional independence requires state guarantees. The state must ensure that the culture of politicisation of the judiciary ends. This requires the creation of a democratic system that commits to the legal-operational guarantees. The legislature and executive must perform their constitutional duties and handle issues that fall within their domain.

Parliament must draft strong legislation, and the executive must ensure effective implementation of the laws. The jurisdiction and competency of the courts must be respected, which must focus on impartial and timely adjudication of disputes. Involvement by one pillar of government into another should be to serve the constitutional oversight and accountability functions only.

Yet, mere words aren’t enough. The state must provide more than just assurances; it must furnish the courts with the tools they need to thrive. Resources, support staff, and yes, smart technology — these are the building blocks of efficiency. Justice Mansoor Ali Shah, speaking at the fifth Asma Jahangir Conference, stressed the need to adopt “smart technology” to clear the backlog of 2.4 million cases.

Justice delayed is justice denied, they say, and in a system burdened with build-up cases, public trust wanes, weakening the institution and creating avenues for interference.

Importance of public perception to judicial independence

Public perception wields a profound influence on the trajectory of institutions. Throughout history, we’ve witnessed institutions reshaping their ways in response to mounting public criticism. When trust dwindles and scepticism grows, institutions find themselves compelled to navigate treacherous waters, often resorting to decisions born out of necessity rather than principle. It’s a subtle form of intervention, driven by the collective voice of the people.

There is the oft-repeated mantra that justice must not only be done, but it must also be seen to be done. So even after the three limbs of judicial independence are addressed fully, there remains the added burden to ensure that the judiciary is seen to be independent. Each limb covered above also requires us to bear the weight of public perception upon our shoulders.

For example, when strengthening the judiciary as an institution, it is important not to do so at the expense of other institutions. Accountability is the linchpin — the force that keeps judicial independence from veering into perilous territory. Without it, the very essence of justice is compromised, damaging the court’s reputation.

The history of judicial activism serves as an example of this argument. Implementing checks and balances, such as those imposed through the Supreme Court (Practice and Procedure) [Act][10], 2023 was a very positive development. It was not an attack on the independence of the judiciary, as it was made out to be.

Similarly, implementing transparency measures advances judicial accountability. Live broadcasts of SC proceedings have peeled back the layers of courtroom secrecy, fostering a newfound sense of trust. However, true accountability also demands a free and unfettered press — recent crackdowns on dissenting voices only tarnish the court’s image, eroding public faith in the process. Notices issued to journalists critical of the SC’s controversial January 13 verdict to revoke PTI’s electoral symbol, and subsequent mistreatment by the Federal Investigation Agency, was viewed as a concerted attack on free speech.

Even if the SC was not directly involved as a complainant, actions taken by the state caused considerable damage to the apex court’s image. Targeting of incitement and abuse must be done in a fair and impartial manner that does not make the state, and in this case, the SC, look like an aggressor. This is why any mechanism developed should include proposals to deal with the media in general, and social media in specific.

But let’s not forget the fundamentals: access to justice, guarantee of due processes, sound judgments, modernised court systems, and reduced delays. These aren’t just checkboxes; they all play a role in improving public perception of the judiciary.

Judicial independence as a path to constitutionalism

The independence of the judiciary has become a catchphrase in recent times. It is being thrown around by those claiming to uphold it, and those actively undermining it. But in this endless back-and-forth, the essence of the term has been lost in the shuffle, reduced to a hollow monolith devoid of its true purpose.

We must remember that the judiciary’s independence is not an end, but a means to achieve an end. The actual objective is the rule of law and constitutionalism. It’s not about isolating the judiciary in an ivory tower but about embedding it within a framework of appropriate legal constraints.

Unfortunately, a rigid binary has emerged, pitting advocates against adversaries in a relentless tug-of-war. A confrontational stance has pervaded discussions surrounding judicial independence, overshadowing its true significance.

However, a glimmer of hope lies in the realm of meaningful dialogue wherein the pursuit of justice isn’t just a slogan but a shared commitment to change through a nuanced understanding of its role as a means to safeguard greater societal good.