Can the judiciary be truly independent in Pakistan? | Explained Premium

The Hindu explains Pakistan judiciary’s struggle for independence from the military

The story so far: In March, six judges of the Islamabad High Court (IHC) wrote to Pakistan’s Supreme Judicial Council (SJC), complaining about intelligence agencies’ intervention to influence the outcomes of certain specific cases. To address the contents of the six judges’ letter, the government announced the formation of an inquiry commission to be led by a former Chief Justice of Pakistan. However, following the refusal of Justice Tassaduq Hussain Jillani, who was nominated by the government to lead the inquiry commission, the Supreme Court of Pakistan has announced a suo motu notice of the case.

The letter by the six judges of the (IHC) is important, as it came immediately after the Supreme Court verdict setting aside Judge Shaukat Aziz Siddiqui’s dismissal by the IHC in 2018 on a similar issue relating to intelligence agencies’ intervention and coercion. The content of their letter includes the following — first, it seeks the SJC’s guidance “to the duty of a judge to report and respond to actions on part of members of the executive, including operatives of intelligence agencies, that seek to interfere with the discharge of his/ her official functions and qualify as intimidation.” Second, the letter demands an inquiry to determine whether there is a “continuing policy” of the “executive branch of the state, implemented by intelligence operatives” to “intimidate judges, under threat of coercion or blackmail, to engineer judicial outcomes in politically consequential matters.” Third, the letter sees a larger institutional debate on the issue, leading towards an SJC code of conduct if there are issues “that are tantamount to intimidation and interfere with judicial independence.”

The response from the senior judiciary has been swift. On March 28, the Chief Justice of Pakistan (CJP) met the Prime Minister and according to a press release from the Supreme Court, “the CJP clearly stated that interference by the executive in the affairs and judicial workings of Judges will not be tolerated and under no circumstances can the independence of the judiciary be allowed to be compromised.” Following the discussion with the CJP, the Prime Minister decided to constitute an inquiry commission and nominated Justice Jillani, a former Chief Justice of Pakistan. Following the latter’s refusal, the Court decided to take suo motu notice on the case. Both civil society and the legal community seem to be backing the case of the six judges.

This is not the first time there has been a debate over the intervention of intelligence agencies in the judiciary. In July 2018, Justice Siddiqui, then a senior judge of the IHC, accused the Inter-Services Intelligence of manipulating judicial proceedings. The SJC that looked into the case was of the unanimous opinion that Justice Siddiqui “had displayed conduct unbecoming of a judge” and was therefore, “liable to be removed from his office.” However, just one week before the letter from the IHC judges, his petition was taken up and his dismissal was set aside.

While the Establishment’s (the military) reach has expanded to all the organs of the state and civil society, during recent years, there has been a pushback. The failed Imran Khan experiment was the first big blow to the Establishment’s hold over politics. Despite engineering a new coalition with the Pakistan Muslim League (N) and the Pakistan Peoples Party, the 2024 election results have been the second big blow for the Establishment. The highly contested verdict shows that a substantial section, including those in Punjab, are with Imran Khan’s Pakistan Tehreek-e-Insaf and do not agree with the Establishment.

The judiciary has also made efforts to curb the Establishment’s activities. However, these efforts have not been fruitful so far. The primary reason is simple — the separation of powers and the balance of power in Pakistan remain skewed. For the judiciary to succeed, the legislature and executive also need to be independent, and the balance of power vis-à-vis the Establishment must be restored. The judiciary also needs to pursue internal reforms and ensure it protects itself from external intervention.

The author is a Professor at the National Institute of Advanced Studies, Bengaluru and coordinates NIAS Area Studies-Pakistan Reader.