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Is Pakistan’s Judiciary “Blind”? – XIII
By: Khizar Niazi
[Prefatory Note: This article
marks resumption of a series on Pakistan's judicial system that was interrupted
last year owing to medical reasons. It had always been my intention to complete
the series once my health permitted.
But when I was finally able to resume work on it, I sensed
that the original publication was no longer the most suitable outlet in which
to carry it forward. Whether because of changing editorial priorities, a
reduced appetite for sustained commentary on sensitive public issues, or simply
a difference in editorial judgment, I felt that the remaining articles would be
better served elsewhere.
This should not be construed as a criticism of the
publication that originally hosted the series. I remain grateful to its editors
for the opportunity they provided over many years. My decision to publish the
remaining articles in an Australian online publication reflects only a desire
to ensure that an important discussion is carried through to its intended
conclusion.
The
issues examined in this series concern not personalities but institutions; not
transient controversies but enduring questions about the rule of law,
constitutional governance, and judicial accountability. Those questions remain
as important today as they were when the series first began, and deserve to be
examined fully, candidly, and without fear or favour.
The
views expressed are entirely personal and are offered in the hope of
contributing to an informed and constructive debate on the rule of law,
constitutional governance, and the future of Pakistan's democratic
institutions.]
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(Recap:
The preceding articles examined Pakistan's judiciary through the prism of the
blindfolded Lady Justice – a symbol often misunderstood.
The
judiciary is expected to be "blind" not to the law, but to the
identity, status, wealth, power, lineage, influence, and political affiliation
of those appearing before it. Its duty is to see only the law and apply it
equally to the powerful and the powerless, the ruler and the ruled, the accuser
and the accused.
The series argued that much of
Pakistan's judicial malaise stems from the judiciary's inability – or
unwillingness – to maintain this blindness. Instead of remaining indifferent to
the identities of litigants, sections of the judiciary have too often appeared
acutely conscious of who stands before them. Consequently, different standards
of justice have frequently been perceived to apply to different classes of
citizens, thereby eroding public confidence in the institution.
Part XII explored this theme through
two powerful and contrasting sources of moral instruction. The first was the
Islamic conception of justice, embodied in the teachings of the Holy Quran and
the Sunnah, which command judges to uphold justice without fear, favour,
prejudice, or personal interest.
The second was the enduring story of
Sisamnes, the corrupt judge of ancient Persia, whose gruesome fate at the hands
of Cambyses II served as a stark warning to all who would sell justice for
favour or reward.
The lesson from both traditions was
identical: a judge who allows personal loyalties, political considerations,
external pressures, or self-interest to influence judicial decisions betrays
not merely a litigant but the very idea of justice itself.
The concluding observation of Part
XII was that until judges place moral integrity above personal advancement and
institutional convenience, the judiciary will remain a tool of power rather
than a guardian of justice.
History, religion, and experience
all teach the same lesson: when justice becomes selective, institutions decay;
when judges fail, societies eventually pay the price.
The natural question, therefore, is
how a judiciary entrusted with such a sacred responsibility reached its present
condition. Is the problem merely external pressure from the Establishment, or
are there deeper structural defects embedded within the institution itself?
It is to those questions that this
article now turns.)
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Part – XIII
In the architecture of modern state,
the judiciary occupies a pivotal position. It serves as guardian of the
Constitution, protector of fundamental rights, and ultimate bulwark against
authoritarian excess. Its legitimacy rests not on the power of the purse or the
sword, but on public confidence in its impartiality, integrity, and
independence.
In Pakistan, however, the
judiciary's performance has long been undermined by a combination of systemic,
institutional, and societal maladies. As a result, an institution that ought to
stand at the apex of constitutional governance often finds itself marginalized,
compromised, or rendered ineffective.
|
“According to various global rule-of-law and judicial-independence
indicators, the country's judiciary consistently ranks among the weakest-performing
institutions in the world – 130th out of 143 in
the world and 5th out 6 in the regions, ahead only of Afghanistan” |
Its independence has repeatedly been
called into question, principally because of its susceptibility to external
influences, particularly those emanating from the Establishment.
Historically, segments of the
judiciary have validated extra-constitutional interventions through the
notorious "Doctrine of Necessity," thereby providing legal cover to
political disruptions that weakened democratic development and constitutional
continuity. Yet to attribute the judiciary's predicament solely to external
pressures would be an oversimplification.
The problem runs deeper. It is
embedded within the very structure of the institution itself – in the manner
judges are selected, promoted, rewarded, and, all too
often, insulated from meaningful accountability.
Consequently, while external
interference remains a significant factor, the judiciary's decline cannot be
explained without examining its own internal shortcomings.
Indeed, it may be argued that no
institution has contributed more to the erosion of judicial credibility than
those entrusted with preserving it.
The first and perhaps the most
damaging defect lies in the process of judicial appointments.
Meritocracy frequently yields to
considerations of personal loyalty, political convenience, familial
connections, or professional patronage. Such practices weaken the institution
at its point of entry and create vulnerabilities that continue throughout a
judge's career.
Equally troubling is the
long-standing practice of appointing retired judges to prestigious
constitutional and governmental offices, including governorships,
ambassadorships, commissions, tribunals, and even the presidency.
Whether deserved or not, such
appointments inevitably create a public perception that judicial conduct may
have been influenced by prospects of future preferment. Justice, after all,
must not only be done; it must also be seen to be done.
Parliament, too, bears its share of
responsibility.
Entrusted with authority to
legislate and amend the Constitution, it has consistently failed to establish
an effective and transparent mechanism for judicial accountability. Loopholes
remain unplugged, oversight remains weak, and institutional immunity often
substitutes for institutional responsibility.
The Executive fares little better.
Successive governments have
frequently treated judicial appointments as opportunities for influence rather
than responsibilities requiring statesmanship. Having facilitated the
appointment of preferred candidates, they have often proceeded to reward compliant
retirees with prestigious assignments, thereby reinforcing public suspicion
regarding judicial independence.
Finally, there are the judges
themselves.
The title "judge" is not
merely a designation. The very word embodies the concepts of justice, fairness,
and impartiality. Judges are addressed as "Justices" because society
expects them to personify justice itself. They are expected to uphold standards
of integrity higher than those demanded of ordinary citizens, not to seek
refuge behind institutional immunity from moral or financial scrutiny.
The quality of any judiciary is
ultimately determined not by its buildings, procedures, or ceremonial
traditions, but by the character, competence, courage, and integrity of those
who occupy the bench.
Pakistan judiciary’s dismal world ranking offers a sobering reflection of this
reality. According to various global rule-of-law and judicial-independence
indicators, the country's judiciary consistently ranks among the
weakest-performing institutions in the world – 130th out of
143 in the world and 5th out 6 in the regions, ahead only of Afghanistan!!!
Such rankings may
not tell the entire story, but these do raise an uncomfortable question: can a
judiciary command public confidence when it struggles to command international
respect?
The remedy, therefore, lies not in
rhetoric but in reform – specifically, in addressing three chronic ailments: a
flawed appointment process, the absence of effective accountability, and the
continuing practice of recycling retired judges into lucrative public offices.
|
“Historically,
segments of the judiciary have validated extra-constitutional interventions
through the notorious "Doctrine of Necessity," thereby providing
legal cover to political disruptions that weakened democratic development and
constitutional continuity. Yet to attribute the judiciary's predicament
solely to external pressures would be an oversimplification.” |
The story begins with appointments.
The dispute between the then
Governor of Punjab, Salman Taseer, and the then Chief Minister, Shahbaz Sharif,
regarding appointments to the Lahore High Court in 2009 offers a revealing
illustration.
In a television interview, Taseer
alleged that an overwhelming majority of the lawyers proposed for elevation
belonged to the Chief Minister's own ethnic community. Whether or not one
agreed with Taseer's broader politics, the controversy exposed an uncomfortable
reality: perceptions of favoritism had become sufficiently widespread to cast
doubt upon the credibility of the process itself.
One of the more
striking examples of political penetration into the judiciary was the
appointment in 1994 of Ahmed Saeed Awan, a former Pakistan People’s
Party (PPP) Member of the National Assembly (MNA), as a judge of the LHC.
Luckily, however, his tenure as a judge was cut short due
to the Supreme Court’s (SCP’s) ruling in the Al-Jihad Trust (1996) case, which
addressed the appointment and tenure of judges.
No discussion of this phenomenon would be complete without
mentioning a few prominent figures, whose judicial decisions were perceived to
show gratitude to their benefactors.
Asif Saeed Khan Khosa, one of the country’s most
illustrious legal minds, who retired as the 26th CJP on 20 December
2019, was appointed as a judge of LHC on 21 May 1998, during the reign of Nawaz
Sharif as Prime Minister. As discussed in detail in previous articles, he was
reported to have provided relief to Sharifs, without any legal provision or precedent;
even against Islamic injunctions.
Athar Minallah, who co-starred opening of courts at
midnight along with CJP Umar Atta Bandial on 9 April 2022, was also inducted as
a judge of the Islamabad High Court (IHC) by Nawaz Sharif’s government in June
2014.
His bizarre demand from the prosecution to undertake
whether or not “in extremis” Sharif, said to be suffering from severe
thrombocytopenia, would survive till the next court hearing, will always be
laughed at in the judicial community. Ironically, the scales fell from his eyes
when he found himself at the receiving end.
Not to forget the irate Qazi Faez Isa’s unprecedented
direct appointment as Chief Justice of Baluchistan High Court (BHC)! Such
travesty, upheld even by the SCP, could happen only in Pakistan. And, his
controversial rulings, discussed in previous articles, more than testified to
the contentious nature of his appointment.
And, of course, Aamer Farooq, reported to have made several
controversial decisions, was also presented with judgeship of the IHC, as a new
year gift for 2015, by Prime Minister Nawaz Sharif’s government!
His audacious decision to uphold arrest of a prominent
opposition figure from the IHC premises was a travesty of justice; a ruling so
divorced from established law that it appeared driven by considerations other
than merits of the case. Given the ruling’s legal frailty, it was dumped in the
Supreme Court’s dustbin.
And, Farooq’s difference
with six colleagues, claiming military establishment’s interference in the
judiciary, exposed him unmistakably.
Such appointments inevitably fuel
the perception that courts are becoming extensions of political influence
rather than guardians against it.
When judicial appointments are
perceived to be based on considerations other than merit, the consequences are
predictable.
Some appointees may be competent but
compromised. Others may be unqualified but loyal. A few may be both compromised
and incompetent. In every case, public confidence suffers.
And when confidence disappears, so
too does judicial authority.
This brings us to the next and
equally troubling defect in Pakistan's judicial architecture: the near absence
of effective oversight and accountability for judges.
To be continued.
(Previous articles
of this serial can be seen at https://dailytimes.com.pk/writer/khizar-niazi/)
The writer is a former diplomat, based in Canberra, and can be reached at khizar_niazi@hotmail.com
