Judicial independence is an essential feature of constitutional democracy. Pakistan’s judiciary has been struggling to secure its independence from the executive since 1947. Both civil and military governments have attempted to keep the judiciary subservient. Some pliant judges have also damaged the independence of the judiciary, endorsing extra-constitutional regime changes, for example in 1958 by General Iskandar Mirza (Dosso’s case), in 1977 by General Ziaul Haq (Nusrat Bhutto case), and in 1999 by General Pervaiz Musharraf (Zafar Ali Shah case). The shadow of this chequered constitutional history looms large over our judiciary.

In the recent past, Pervaiz Musharraf took over the government in 1999 and issued a Provisional Constitutional Order (PCO) barring the courts from reviewing the acts of Musharraf as a self-declared Chief Executive. Violating their oath, several judges were asked to take a fresh oath to the Chief Executive; those who refused were removed. This coup was challenged before the Supreme Court of Pakistan (SC), but the judges who had taken Musharraf’s oath upheld the PCO. Musharraf made drastic amendments in the Constitution through a Seventeenth Amendment (including the revival of an infamous article, Article 58 (2)(b), which the president had often used in the past to dissolve elected governments), and when this amendment was challenged before the SC it too was upheld by the PCO judges (Pakistan Lawyers Forum case).

Ex-Chief Justice Iftikhar Muhammad Chaudhry started taking suo motu notice of human rights cases. Threatening the writ of Musharraf’s government, Musharraf told Justice Chaudhry to resign, but he refused, so Musharraf put him under house arrest. A presidential reference was filed before the Supreme Judicial Council (SJC), but Chaudhry challenged this reference as malafide and, in the Justice Iftikhar Muhammad Chaudhry case, the SC restored the Justice. When a nationwide lawyers’ movement started against Pervaiz Musharraf, he passed another PCO in November 2007 with a fresh oath. In the Wajihuddin Ahmad case, however, a seven- member SC bench headed by the Chief Justice passed a restraining order against the PCO, but these judges too were put under house arrest, allowing judges who had taken the fresh oath to declared the findings of Wajihuddin Ahmad unlawful (upholding the PCO in Tikka Iqbal Muhammad case).

These unconstitutional developments fueled a massive lawyers’ protest movement, eventually leading to the restoration of the deposed judges on 17 March 2009. Musharraf was subsequently made to resign and, in the Sindh High Court Bar Association case, the SC declared all of the actions taken by Musharraf unconstitutional. In 2010, an Eighteenth Amendment was passed restoring the Constitution in its original form (without Article 58 (2)(b)). The Eighteenth amendment also provided a role for a parliamentary committee to be involved in the approval of judges’ appointments, but this was challenged in Nadeem Ahmad Adv case, wherein the SC referred the matter back to the legislature with a proposal to ensure the separation and independence of the judiciary from both the executive and the legislature. The legislature amended its proposal and, in the Munir Hussain Bhatti case, the SC reiterated the exclusive role of a purely judicial committee in judges’ appointment: The Nineteenth Amendment subsequently incorporated the SC’s recommendations regarding the appointment of judges (Article 175A).

Nevertheless, this history seeking to constrain the judiciary seems to have been repeated in a recent presidential reference against Supreme Court Justice Qazi Faez Isa. The government filed a reference before the SJC claiming that Justice Isa had concealed his beneficial ownership of properties in London when filing wealth statements before the tax authorities, but Justice Isa denied these allegations and stated that the properties belonged to his non-dependent spouse and children. He maintained that the reference was malafide, aiming to silence him and make the judiciary weak and subservient after his judgment in the so-called Faizabad case, dealing with a massive anti-government protest that ended with images of Pakistani soldiers paying protesters to desist, irked Pakistan’s establishment quarters. Again, the SC declared the reference completely ‘invalid’ whilst directing revenue officials to conduct an enquiry of the spouse and the children of Justice Isa as to the source of the funds that allowed them to buy the London properties.

Some have argued that the SC decisions in both the Justice Chaudhry and the Justice Isa cases firmly established the independence of the judiciary, the rule of law, and constitutionalism in Pakistan. But in hindsight, they might only show that in exceptional circumstances (e.g. malafide proceedings against a SC judge), the SC will bypass the constitutional mandate of the SJC to throw out the malafide reference, seeing these references and the work of the SJC as justiciable insofar as it pertains to ‘the independence of the judiciary’ as a matter directly tied to the protection of fundamental rights (Article 184). In fact, these cases suggest that, sometimes, even the honorable judges of the SC do not consider SJC proceedings transparent. These arguments gain weightage when references against Shoukat Aziz Siddique and Justice Isa reportedly proceeded while ignoring other complaints before the SJC and most importantly the public discourse on the subject in the perspective of liberal democracy.

Of course, some disagree; they contend that, while quashing the references against Iftikhar Chaudhry and Justice Isa and, thus, the work of the SJC, the SC has effectively made the superior judiciary immune from accountability. It is argued that a decision on a reference by the SC ousts the jurisdiction of the SJC, which is against the dictates of the Constitution.

It may be argued when the SCJ is mandated under the Constitution (Article 209) to examine malafide of a reference through an inquisitorial process and also to direct action for frivolous information, a reference may not be quashed by the SC without thrashing of evidence by the SJC. The SJC proceedings may be made more transparent making amendments in Article 209 and the Supreme Judicial Council Procedure of Enquiry 2005. For example, the number of the SC judges comprising the SJC may be increased and the procedure for filing a reference by the President be made objective; a reference shall be decided in priority with reference to the date of its filing and the findings of the proceedings shall be published on the SJC website.

Briefly, the government must demonstrate a credible commitment to the independence of the judiciary. The procedures for appointment, transfer and promotion and constituting of benches should be made more inclusive and objective. The remuneration of judges should commensurate with judicial responsibility. The SC and the legislature should provide guidance and a clear procedure for the independence and accountability of the judiciary. The independence of the judiciary must be prioritised to consolidate the gains from the recent democratic transition in Pakistan.