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1- Introduction
2- The importance of Independent Judiciary to strengthen democracy
3- What makes Judiciary the sole custodian of the constitution
- The power is given to Judiciary in the Constitution of 1973 to maintain their Independent role
- Constant tussle between state institutions
- Military coup and abrogation of the Constitution
4-Incidences that give impetus to Judicial activism
- ✓Intervention of an autocratic regime
- Case in point: Unfair dismissal of the Supreme Court judge Iftikhar Chaudhry by Pervez Musharraf, the then President of Pakistan.
- ✓Non-Constitutional decisions of political leaders in the state affairs
- Case in point: Dismissal of Assembly and attempt to block a non-confidence vote by the former prime minister of Pakistan.
- ✓Decreasing legitimacy and credibility of political leaders and their agenda in pursuing personal interests over state interest
- Case in point: Corruption cases of political leaders -PMLN and PPP- and vote against their party leader a case of “party defection”
5- Critical Analysis
6- Conclusion
Introduction
Judiciary has a crucial role to play in a country. With an impartial judiciary, a country can progress towards the height of glory. At the same time, it can progress economically, socially, and politically. On contrary, without an impartial judiciary, a country’s socio-political fabric shattered its economy nose-dived and prevailed in a chaotic situation. Like the maxim “ Justice delayed is Justice denied”. The ineffective implementation of law and order in many countries has been due to a partial judiciary. For instance, the current situation of lawlessness in Pakistan is not exempt from those countries. However, for decades judiciary in Pakistan has been struggling to revive its position as Independent Judiciary as constituted in Constitution to strengthen democracy and its hold. Unlike in history, now the judiciary acts as the sole custodian of the Constitution through Judicial review and activism, imposing its discretionary power to protect fundamental rights and maintain checks and balances of institutions. Hence, the role of the Judiciary and the faith of judges in a country decides its fate.
Importance of Independent Judiciary to strengthen democracy
To begin with, Independent Judiciary is the feature of a federal state because the federal notion is to protect the constitution of the country. That purpose is served only when the judiciary is independent and performs its function unbiasedly as a watchdog of fundamental rights, especially in a country where a tug of war for power exists between leaders no, matter elected or non-elected. Moreover, Pakistan saw a constitutional crisis in its infant years. The first abrogation of the constitution took place on 25-oct-1954 and dissolved of assemblies in a military coup. Since then, again and again, assemblies have dissolved under the pretext of blame games and others in 1960,1990,1993, and 1996. However, in many cases, the judiciary uses its discretionary power to show justice. For instance, the Asma Jalani case overrules its decision and declares Yahya Khan’s military regime as a usurper. Also, annul defective clauses from the Party Politics Act to facilitate democratic leaders. Further midnight conducting of vote of non-confidence and consider undemocratic decisions void. Hence, act as proactive rather than reactive.
What makes Judiciary the sole custodian of the constitution
Besides, the notion of “constitutionalism” of the judiciary. It has encapsulated with power in Constitution 1973 to maintain and protect their independent role. Moreover, the reason for excessive power is the abrogation of the first two constitutions. Further, to prevent military coups and the use of executive power by the then presidents to derail democracy in the name of the Doctrine of necessity. Unfortunately. Previously judiciary validate that coup and politicized its decision because of less power granted to it. Additionally, the constant tussling between state institutions and stepping in of that institution into each other realm. Moreover, the use of Article 58-2B to consolidate power by the executive and through it showed their anger on the then prime ministers by dissolving assemblies and ending their regime. Further, the military coup and their abrogation of the Constitution changed the status of the state from federation to autocratic and military dictatorship instead of elected representatives of the masses after the Lawyers Movement politicization of the judiciary with the military and other elites washed out because their power is no more than the judiciary’s power.
Incidences that give impetus to Judicial activism
Meanwhile, the intervention of an autocratic regime in the judicial realm makes judges, lawyers and the masses furious. That is, the unfair dismissal of the Supreme Court judge Iftikhar Chaudhry by Pervez Musharraf, the then President of Pakistan, on the charges of misconduct and malpractices during his office. In his place, appointed Hameed Doger in accuse of misbehaving in using his power. At the same time, a large number of people stood against military rule with demonstrations, protests, hunger strikes, and the destruction of state resources. Additionally, senior judges resigned from their posts in protest. Ahtezaz Chaudhry a protagonist, stood side by side with the masses leading them and demanding the removal of Musharraf. It also exposed his unethical position holding of president and generalship at the same time., when pro-Musharraf judges accuse Iftikhar Chaudhry of being a missing person, help. Hence, the Lal Masjid incident and mass violent protests compel Musharraf to take back his decision. Accordingly, non-Constitutional decisions of political leaders in state affairs compel the chief justice to take suo moto decisions. Indeed, the dismissal of the Assembly and the attempt to block of non-confidence vote by the former prime minister of Pakistan are considered undemocratic by the chief justice. Also, the midnight vote was conducted by him to revive the democratic process. Additionally, decreasing the legitimacy and credibility of political leaders in eyes of the judiciary, their constant conflict and lag pooling, also their agenda in pursuing personal interests over state interests make the judiciary have an eye on their actions through judicial review proactively. Further, corruption cases of political leaders -PMLN and PPP- certainly, Panama papers and Swiss account cases. Besides, the dismissal of prime minister Yousuf Raza Gilani and Nawaz Sharif weakened the credibility of elected representatives. Also, voting against their party leader in the case of a non-confidence vote is proclaimed as “party defection” by the judiciary because of the untrusted acts of political members.
Critical Analysis
Judiciary has a crucial role to play in a Pakistan and currently, political instability and polarization with an economic crisis make it a must for the judiciary to act independently and intervene in the executive and legislative realms to prevent chaos. For instance, a petition for a caretaker government and a call for an early election by the opposition against the coalition government give more liberty to the judiciary to act in its own direction. Since Pakistan’s inception judiciary acted as a troika. In the first phase, it was a troika of the Prime minister, President and judiciary. Second, it was the Prime minister, Chief justice and judiciary. Also, leaders were happy when judiciary decisions were according to their interests and opposed them when not according to their will. Further, the future decision of the chief justice may create angriness among some elite, and they claim the act is an overreach of the judiciary or a judiciary coup.
Conclusion
The judiciary is the feature of a federal state because the federal notion is to protect the constitution of the country. That purpose is served only when the judiciary is independent and performs its function unbiasedly as a watchdog. As Pakistan is a federal state and its judiciary supremacy is granted by the constitution. After the third decade of military rule judiciary revived its legitimacy and credibility. But still, some loopholes are there to make its decisions and appointment of judges transparent. Also, the judiciary is lacking in giving exemplary punishment to culprits to prevent the further incidence of lawlessness. Still, it is not too late to realize weaknesses, and if you work on them scrupulously, betterment in the process is not far. Then it performs its function to maintain a balance between the state institution and give timely justice in the country with law and order and prove that everyone is equal in front of the law. To prove wrong the maxim “ Might is Right”.
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