Of all the three organs of the state, judiciary plays a vital role for sustaining democracy and rule of law in the country. Judiciary elaborates the hidden meanings of the constitutional clauses and hence clarifies the ambiguities prevailing in the constitution, its wordings and its structure. Judiciary clarifies the allocation of powers and their distribution among various organs of the state and marks their functions, roles and responsibilities.
Historically speaking, the role of judiciary in Pakistan has never been satisfactory. Inclination of judiciary and judges towards the military dictators in Pakistan has brought this institution under severe public criticism. It is because of these prevailing injustices and inclination towards specific groups and rulers that today in Pakistan, deteriorating condition of law and order, accountability and corruption is everywhere visible.
Pakistan, for most of the times has been ruled by Military dictators. During military regimes the Article 8 and other such articles have been suspended which guarantees the basic human rights of citizens. The only well articulated, parliamentary and civilian constitution of Pakistan, the constitution of 1973 has been either suspended or abrogated by various military regimes. To put it into simple words, 29 amendments were introduced in the constitution during the military regime of Pervez Musharaf only.
The judiciary in Pakistan went on wrong track in 1954, when it endorsed the illegal action of Ghulam Muhammad’s dissolution of National Assembly. The highest court validated the decision and the appeal of speaker Molvi Tameez ud Din was dismissed. The famous doctrine, the ‘Doctrine of Necessity’ was created and from that moment onward this doctrine has always helped our military dictators in ruling Pakistan with the help of judges of higher courts of country. This barbaric and illegal action of legal institution of country haunted many civilian governments. After all these were our judges who validated the military rules of Ayub Khan, Zia ul Haq and Pervez Musharaf. The execution of most famous civilian Prime Minister Z.A.Bhutto was also possible because of Judiciary military nexus. Justice Molvi Mushtaq Husaain was latter assassinated while he was traveling with Chaudhri Zahoor Elahi, the than minister of Zia.
The military judiciary nexus has brought a great deal of benefit to those judges who favored the military rule in the country. Justice Irshad Hassan, who took oath under PCO was later elevated to the post of Chief Election Commissioner of Pakistan and justice Iftikhar Mohd was promoted as chief justice of Pakistan by surpassing justice Falak Sher because of Chaudhry’s ardent support for Musharaf regime. One must not forget the harsh fact that it was Iftikhar Chaudhry who endorsed Musharaf’s position as president of Paksitan and COAS at same time. He legalized the referendum of Musharaf by declaring it a “public decision.”
The current judicial activism in Pakistan will bring many unseen repercussions to the country. It will turn a suppressed judiciary to over active judiciary. As a result of this activism the judiciary in Pakistan will not be answerable to the parliament, the supreme law making body of the country. The whole responsibility of hiring and firing of judges along with their promotion will be prerogative of Chief Justice involving a high risk of personal liking and biasness. In long term it will create mess for elected representatives of the country by issuing verdicts against them. A report of BBC URDU on the appointments of judges in High Courts during 2011 reveals that five judges of LHC belonged to Hamid Khan Chamber and five to the chamber which had kinship with Justice Khwaja Shareef. One judge, justice Umer Peerzada belonged to PPP, Yawar Ali was brother in law of Justice Ramday and Justice Hameed Daar was relative of Justice Khwaja Shareef. With such strong political and party affiliations, access to transparent justice remains a mirage.
Martin Luther King once said that “injustice anywhere is threat to justice everywhere”. One can not presuppose that justice will be done to public with such an injustice and political affiliations prevailing in our courts. No reason is there to have much optimism about the so called judicial activism in the country. As with each military dictator came a new breed of vested interest politicians, so will be the result of strong and out of control judiciary. The need of hour is to strengthen every organ of the state. Heavily dependence on one organ and weakening of others will create great chaos and it will bring the country to an appalling stage as has been our long experience with strong military.