Balancing Justice: The Judiciary’s Crucial Role in Democracy and the Rule of Law in Pakistan

In the grand theatre of politics, democracy is the stage where every citizen is both the audience and the actor, shaping the narrative of a nation’s destiny. Democracy flourishes when the judiciary remains steadfast in its commitment to core constitutional principles, ensuring that the rule of law prevails over the transient winds of political expediency. The following article will discuss the current and historical democratic situations of Pakistan and the role judiciary has played in it.

Over time, Pakistan has witnessed increased inter-institutional rivalry as political parties and elected bodies vie for control, particularly in a context where the military historically wielded significant influence. The superior judiciary has emerged as a pivotal player in resolving disputes among political and governmental elites. Its role in Pakistan’s political landscape is multifaceted, encompassing both support for and challenges to democratic principles. However, concerns have been raised regarding judicial actions that may have hindered democratic functions.

The preamble of Pakistan’s Constitution emphasizes the importance of democracy and the rule of law. However, historical instances suggest a departure from these principles within the judiciary. For instance, in 1953, Governor General Ghulam Muhammad dismissed Prime Minister Khawja Nazimuddin and dissolved the Constituent Assembly in 1954, actions supported by the judiciary. This raises questions about the judiciary’s commitment to impartial and fair justice. By condoning executive overreach and subverting the constitutional order, the judiciary failed in its duty to ensure a balanced and just system, thereby undermining the very foundations of democracy it is meant to protect.

The court’s validation of the assembly’s dissolution created a regrettable precedent for Pakistan’s parliamentary history. This decision led to political unrest, which was detrimental to the advancement of democracy. Following such a ruling, the judiciary asserted itself as a barrier to democracy.

The first Constitution of Pakistan was short-lived, abolished by Gen. Ayub Khan upon assuming office as Chief Martial Law Administrator in 1958, marking the onset of military dictatorship. The Supreme Court of Pakistan further legitimized the military coup under the Doctrine of State Necessity. This pivotal moment not only underscored the fragility of democratic institutions but also set a precedent for future military interventions. The judiciary’s endorsement established a troubling precedent, suggesting the rule of law could be subverted in the name of national emergencies. This continues to reverberate through Pakistan’s democratic journey, highlighting the enduring challenge of maintaining constitutional governance and civilian supremacy over the military.

The imposition of martial law, in 1969 by Yahya Khan- upon the resignation of Ayub- was challenged in the Constitutional Case of Miss Asma Jilani v. Government of Punjab, where the transfer of power to Yahya Khan was deemed illegal. Through the exercise of judicial review, the Dosso Case, which had previously legitimized the Doctrine of State Necessity, was overturned, and the doctrine itself was condemned. The landmark decision in the Asma Jilani case marked a pivotal moment in Pakistan’s democratic trajectory, signaling a return to constitutional governance following a prolonged period of dictatorship. However, the judiciary’s response highlights a pattern of supporting prevailing political power dynamics rather than adhering strictly to judicial and constitutional principles. These episodes highlight the complex interplay between the judiciary and political forces in Pakistan.

In the case of Begum Nusrat Bhutto v. Chief of Army Staff, the Supreme Court dismissed Bhutto’s petition against Zia-ul-Haq’s martial law, citing the Doctrine of State Necessity. This decision prolonged military rule, showcasing challenges in fostering democratic governance amidst executive and judicial dysfunction. From the 1990s onward, Pakistan’s courts embarked on a trajectory of increasing independence and intervention, reaching a highpoint during the confrontation between the superior judiciary and Musharraf’s regime in 2007. The Supreme Court challenged key aspects of Musharraf’s rule, such as his dual roles and attempts to dismiss Chief Justice Chaudhry. Judges’ resistance sparked a nationwide pro-democracy movement that led to Musharraf’s downfall. This defiance solidified the judiciary as a power centre, signalling a significant shift towards a stronger judiciary and bolstering democratic principles in Pakistan.

Following Musharraf’s era, Pakistan witnessed the establishment of elected civilian rule, during which judges assumed a custodial role within the political system. The Supreme Court, with its emphasis on combating political corruption and its broad interpretation of authority, notably removed two elected prime ministers, Yousuf Gilani and Nawaz Sharif. While addressing political and administrative corruption was undoubtedly necessary, the judiciary’s repeated interventions in executive and legislative domains ultimately undermined the supremacy of elected civilian institutions.

The period between 2017 and 2018, saw a weakening of the elected government system and paved the way for the military’s resurgence in political dominance. The Supreme Court’s vigorous anti-corruption stance primarily targeted the PPP and PML-N, often in response to petitions initiated by PTI members, leading to the disqualification of key leaders, notably Nawaz Sharif, from holding political office. Imran Khan’s popularity, complemented by the Supreme Court’s anti-corruption initiatives and the military’s intervention to tilt the electoral scales in favor of the PTI, secured the party’s victory in the 2018 elections. Meanwhile, opposition figures from the PPP and PML-N found themselves entangled in legal battles and incarceration over corruption allegations, against a backdrop where judicial impartiality came under scrutiny due to perceived executive influence.

By 2021, tensions between the military leadership and Khan had escalated, creating an opening for opposition parties to mount a challenge against the PTI government, culminating in the Parliament’s April 2022 vote of no confidence against Khan. Khan’s dissolution of the Assemblies before vote, prompted the Supreme Court to intervene, albeit in a manner perceived as highly unusual due to the timing of its action outside regular court hours raising questions about the judiciary’s eagerness to assume roles traditionally attributed to the legislature and the executive.

Recently, the Supreme Court upheld the electoral commission’s decision to bar the PTI from using its cricket bat electoral symbol, further exacerbating tensions surrounding the elections. The party’s leaders have faced imprisonment, and many of their candidates have been denied nomination papers, fueling controversy, and raising doubts about the transparency of the electoral process. These actions, aimed at sidelining one of Pakistan’s major political parties, threaten to undermine the credibility of the electoral process and destabilize the country’s democratic institutions. In another contentious ruling, the Court lifted the lifetime ban on Sharif from contesting elections, adding to the scrutiny surrounding its impartiality and casting doubt on its ability to uphold the rule of law consistently.

The historical and present events, as highlighted above, in Pakistan underscore the urgent need for judicial reforms, especially in the context of the country’s precarious economic situation and its struggle to uphold democratic principles. The judiciary, as the guardian of the nation’s laws and Constitution, plays a pivotal role in averting potential crises and maintaining stability. The period between 1990 and 2007 exemplifies this, as the judiciary’s impartial stance was instrumental in preserving law and order, thereby safeguarding democracy against military interventions. A fair and independent judiciary is indispensable for upholding the rule of law and ensuring that democratic processes remain robust and resilient. Without such a system, there is a risk of unchecked power, erosion of civil liberties, and the destabilization of democratic institutions. Therefore, the imperative for impartial and fair judicial reforms in Pakistan lies in their critical role in safeguarding the rule of law and democracy, thereby preventing the country from descending into chaos and turmoil.

A concerning fact is that the Rule of Law in Pakistan frequently seems to be an abstract ideal rather than a tangible reality. This is highlighted by the widespread belief that individuals in positions of authority are immune from repercussions as well as an apparent bias in the judiciary towards incumbent political leaders. This structural disparity threatens the core principles of democracy and the Rule of Law in addition to undermining public confidence in the judiciary. The perception of unequal treatment under the law is reinforced when political leaders enjoy impunity while in office, like in the case of Nawaz, Imran and other PPP/PTI/PML-N leaders, and only come under legal scrutiny after losing their positions of authority. A situation like this not only maintains a state of lawlessness but also encourages citizen pessimism and dissatisfaction which eventually erodes the foundation of democratic governance.

In order to eradicate these issues and ensure an impartial and just judiciary prevails, it is important to maintain judiciary’s independence from external influences, particularly political and military interference. Recently, certain Supreme Court judges resigned from office as their independence was being compromised, also judges of the Islamabad High Court alleged interference by the country’s intelligence agencies in judicial affairs. To curb such issues robust legal protections, transparent appointment processes, and adequate funding to reduce reliance on external sources should be introduced.

A vital role can be played by a merit-based appointment system, currently, although not apparent, most of the judicial appointments are political based and the establishment also plays a vital role in their appointments. The legitimacy and integrity of the judiciary can be improved by reducing the impact of nepotism and favouritism through the implementation of merit-based standards for judicial appointments and promotions. To guarantee accountability and openness, impartial judicial commissions made up of representatives from civil society and legal professionals might supervise the selection procedure. Moreover, strengthening legal institutions and enhancing accessibility for marginalized groups are critical steps toward fostering trust in the justice system. International collaboration can provide valuable insights and support, but sustainable change ultimately depends on domestic commitment to upholding democratic principles and the rule of law.

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