In recent months, Pakistan's superior judiciary has found itself mired in controversy, either due to internal schisms over administrative authority or external pressures over the formation of benches.

But Pakistan's judiciary is no stranger to controversy. Over the years, it has been responsible for its fair share of excesses, often done under the garb of being the protector of the Constitution and upholder of the rule of law.

Some who have dared to challenge the legitimacy of the judiciary’s not-so-kosher actions have found themselves staring down the barrel of contempt of court charges. By shutting down fair criticism, the judiciary has exalted itself to a near-untouchable and unaccountable status.

The judicial activism we see on display in Pakistan today has a long and troubling history, starting with the infamous Molvi Tamizuddin case in 1954, in which the then Chief Justice of Pakistan Muhammad Munir, along with four other judges, declared the dissolution of the legislative assembly by Governor General Ghulam Mohammad legally valid.

This would become the first of many instances where the courts legitimised the abrogation of the Constitution under the guise of the ‘doctrine of necessity’. In more recent times, these excesses have morphed into needless suo motu actions, as well as interference in political decisions, through which the judiciary has repeatedly overstepped its constitutional bounds, damaging both democracy and institutions of governance in the process.

Legacy of the Lawyers' Movement

Modern day judicial activism took off considerably after the Lawyers' Movement of 2007-2009. While it was a grassroots level movement, engaging local bar councils from across the country, political parties also threw their weight behind the campaign due to its mass appeal.

The PPP was at the forefront of this political support, but when President Asif Ali Zardari failed to reinstate judges sacked by his predecessor, General Musharraf, for refusing to take oath under the Provisional Constitutional Order, the movement started targeting him for reneging on his promises.

This also led to the fracture of the Lawyers' Movement into pro-judiciary and pro-government camps — each with their own support bases and affiliated political parties — ushering in a new era of political and establishment intervention in the judiciary.

Read more: Role of the judiciary

Thus, despite the fact that the modern judiciary is the brainchild of a mass movement — that supposedly gave way to an independent judicial system — it has not been able to shake the impression of being controlled by the establishment. In fact, that perception has only grown, primarily due to the fact that the superior judiciary has repeatedly been accused of involvement in ‘political engineering’ and regime changes.

Political interference

Article 184(3), which grants the Supreme Court suo motu powers, on its own is an effective tool by way of which the constitutional validity of laws and decisions made by public bodies may be reviewed.

The actual issue arises when judges show unnecessary eagerness to invalidate legislative or executive actions. Moreover, in some cases, the superior judiciary has been seen to go beyond the confines of the petitions before it and allow its own personal views to influence decisions on matters of public policy.

Read more: Judicial overreach?

Take for example the decision taken by the Supreme Court in 2012 to suspend 28 lawmakers. The special bench comprising Justice Iftikhar Chaudhry passed the order while hearing petitions filed by the PTI and the PPP, challenging the validity of by-polls conducted on the basis of bogus entries in the electoral rolls leading up to the February 2008 elections.

The court went beyond the ambit of the petitions to question why the Election Commission of Pakistan (ECP) was not properly constituted in accordance with the 18th Amendment. Moreover, it tied the reinstatement of the suspended lawmakers on the condition of passage of the 20th Amendment. This condition set off another round of political confrontations as the court gave opposition parties leverage to drag their feet. It also set a dangerous precedent of the court setting aside the results of an election.

Suo motu action over delay Punjab and KP polls

The recent suo motu action by the Supreme Court over delay in the elections of Punjab and KP, much like the suo motu proceedings in 2012, are being called out by legal experts as well as some judges of the Supreme Court as unjustified.

While few constitutionalists would argue against the verdict ordering the ECP to hold elections within 90 days, it is the manner in which the suo motu proceedings were conducted that made it controversial, particularly in light of the recusals that followed.

As Justice Jamal Khan Mandokhail pointed out in his dissenting note, the bench of Justice Ijazul Ahsan and Mazahir Ali Akbar Naqvi, while hearing an unrelated petition, summoned the Chief Election Commissioner and asked about the delay in elections in Punjab.

In these circumstances, suo motu action was unjustified, observed Justice Mandokhail. Agreeing with him, Justice Yahya Afridi termed it “judicial pre-emptive eagerness to decide", especially considering the fact that an intra-court appeal on the same matter was pending before the Lahore High Court.

Then there was the matter of bench formation, in which Justices Qazi Faez Isa and Sardar Tariq Masood — the two senior-most judges after Chief Justice of Pakistan Umar Ata Bandial — were absent. However, Justice Mazahir Ali Akbar Naqvi, the subject of an audio leak controversy, was included in the same bench — a move that was "inappropriate", wrote Justice Mansoor Ali Shah in his dissenting note. "This inclusion becomes more nuanced when other senior Hon’ble Judges of this Court are not included on the Bench,” Justice Shah added.

This controversial judicial episode simply shows that it does not matter if the decisions taken in the end are correct. What matters is the way in which those decisions are taken. As the popular maxim goes, justice must not only be done, it must also be seen to be done. If the impression given by a particular decision is one of partiality and favouritism, the objectives of justice have been defeated.

PTI petition against ECP order to delay elections

Weeks after the SC verdict, ordering the ECP to conduct the provincial elections on time, a five-member bench was formed to hear the PTI’s petition against the electoral watchdog's decision to delay elections in Punjab — in contravention of the SC's orders.

Once again, notable names were missing from a case of grave constitutional importance. The inclusion of Justice Ijazul Ahsan, after he had recused himself from a previous nine-member bench over allegations that he had already disclosed his mind, was a surprise entry. From the outset, Justice Mandokhail maintained that the Supreme Court had dismissed the suo motu case with a 4-3 majority, and stuck to disagreements expressed in his dissenting note.

While the hearing on this petition was ongoing, Justice Qazi Faez Isa authored a 12-page judgement where he remarked that the CJP does not have unilateral power to constitute benches and select judges, and that all cases under Article 184(3) be postponed until amendments are made to the Supreme Court Rules 1980 regarding the CJP’s discretionary powers.

On the basis of this judgement, Justice Aminuddin Khan recused himself from the bench, which was followed soon after by the recusal of Justice Mandokhail.

Subsequently, the CJP, through SC Registrar Ishrat Ali, issued a circular in which he disregarded the aforementioned judgement, and resumed hearing with the remaining three judges. This three member-bench ruled on Tuesday that the ECP decision to postpone polls in Punjab till Oct 8 was “unconstitutional” and fixed May 14 as the date for elections in the province.

The verdict came amid an outcry from various political circles for the formation of a full court to dispel the notion of bias and settle the matter of election delay conclusively. A request in this regard by Attorney General for Pakistan (AGP) Mansoor Awan has already been rejected by the CJP.

The judicialisation of politics and politicisation of the judiciary cuts both ways. Quite often, courts are dragged into the political domain, making them a subject of criticism and ridicule. But the judiciary has also made itself controversial by eagerly interfering in matters that should ordinarily have political solutions. The election date issue is now extremely polarised. Barring a full court, any verdict would invite a fresh round of public bashing from relevant stakeholders on either side of the political aisle.

Read more: Beginning of another crisis? Legal eagles weigh in on SC’s Punjab poll verdict

Judicial activism in recent history

In legal parlance, the ends do not justify the means. The process of attaining justice sometimes carries more importance than the final judgement itself. If the former is tainted, the latter, though binding, will not be respected.

Events surrounding the vote of no-confidence last year serve as another example of this phenomenon. Restoration of the National Assembly after dissolution by the President was a noble move on the part of the Supreme Court as it broke away from the ugly precedent of the ‘doctrine of necessity’.

However, the late-night opening of the Islamabad High Court and Supreme Court offices — as the clock approached midnight on April 9 and the speaker was reluctant to put the no-confidence motion to vote — drew widespread criticism.

The fact that this happened soon after news broke that then-Prime Minister Imran Khan may denotify the incumbent Chief of Army Staff, served to create the perception that it was done at the behest of the establishment.

Judicial actions are supposed to be reactive, not proactive in nature. In that instance, however, the Supreme Court took notice before the speaker committed contempt by violating the restoration order. And it did so after regular court timings, which is highly unusual.

The court might well have been performing its constitutional duty as the final arbiter of the rule of law. However, what is visible, sells. And what was seen here was a court unilaterally eager to perform the role of both the legislature and the executive.

Recent history is replete with other examples of judicial activism and political intervention by the judiciary — the blatant constitutional rewriting by the Supreme Court in its decision on a presidential reference seeking interpretation of Article 63-A, the surprise hospital visits by former Chief Justice Saqib Nisar, declaration of disqualification under Article 62(1)(f) to be permanent in nature and the conviction and disqualification of former Prime Minister Yousuf Raza Gillani — have all served to tarnish the reputation of the judiciary and polarised public opinion towards it.

The impact of judicial activism beyond politics

Judicial activism also has dire economic consequences. It hurts investor sentiment who fear that the risk of litigation may create unnecessary constraints. Foreign investors, in particular, shy away from uncertainty and unpredictability, an environment created by needless intervention by the judiciary in the executive and legislative domains. The botched privatisation of Pakistan Steel Mills in 2006 at the hands of the Supreme Court serves as a prominent example, which has cost the national exchequer an exorbitant amount to date.

An overly eager judiciary, that is perceived to be trampling institutional bounds, also serves to turn public sentiment against the courts. Political decisions will always have polarising reactions, and usually that anger is directed towards the legislature and executive — two institutions that are constitutionally mandated to protect public welfare. However, public contempt is redirected towards the courts and the military when political decisions are seen to be taken by them.

Last but not by far the least, judicial activism weakens democracy. It comes at the expense of parliamentary sovereignty and supremacy. Lawmakers become dependent on courts to offer legitimacy to their actions or undermine those of their opponents. In the process, the institutional capacity of both the legislature and the executive is damaged.

Unfortunately, in Pakistan, the weakening of democracy goes hand in hand with strengthening of the military. In addition to the aforementioned Molvi Tamizuddin case, the Zafar Ali Shah case, where General Musharraf’s 1999 imposition of martial law was rubber stamped by the Supreme Court, and the Begum Nusrat Bhutto case, whereby General Ziaul Haq’s 1977 declaration of martial law was given legal cover by then Chief Justice Anwarul Haq’s court, are all important readings for those looking to learn more about the judiciary’s role in undermining democracy.

Reforming the judicial system

First and foremost, the administrative authority of the CJP must be curtailed. Powers related to appointment and removal of judges, exercise of suo motu powers and the constitution of benches give unbridled influence to one single person to run an entire institution based on their own whims.

To this end, an independent and objective criterion for the selection of judicial nominees must be introduced. There should be input from all stakeholders in society on this matter. And the use of discretion to pick and choose judges for specific cases must be regulated.

Bench formation should be a transparent process. Suo motu jurisdiction must be limited to issues of fundamental rights. Taking up any matter as a suo motu case has been seen to facilitate misuse of authority. The Supreme Court (Practise and Procedure) Bill 2023 recently passed in the National Assembly is a step in the right direction, although it is likely to face many legal hurdles.

Secondly, the legislative and executive branches must also stop involving the courts in issues that fall within the political domain. There are an exceedingly large number of frivolous cases filed by rival political parties against each other. Such cluttering of the legal system only serves to delay justice for those who truly need it.

Lastly, judges must also realise that they are not above criticism and must submit themselves to institutional checks and balances. The judiciary must not continue to dangle the contempt of court sword over society in an attempt to curb valid and necessary criticism.

In the process of targeting the military for institutional abuse of power, the acts of the judiciary often go unnoticed, even though the judiciary has often served as a proxy for the establishment.

History reveals dire consequences of politicised courts and judicialised politics. It would be a fool’s paradise to expect anything different from the future without implementing judicial reforms. It is high time to break the cycle of institutional transgressions. Only then will democracy in Pakistan begin to gain a foothold.