PAKISTAN’S judiciary has always been something of a pendulum, swinging between periods of independence and moments of deep political influence. Over the years, we have seen judges make bold, autonomous decisions, standing as guardians of the Constitution. Yet, at other times, the judiciary has found itself swayed by political forces — sometimes supporting the government, sometimes leaning towards the opposition, and at other times yielding to the influence of the establishment. The balance between independence and control has always been fragile, fluctuating with the political tides.

Today, however, Pakistan faces an alarming development: an overt attempt to consolidate political control over the judiciary, threatening to extinguish whatever remains of its independence. The proposed Federal Constitutional Bench or Division, along with the shift in how judges are appointed, is not merely a procedural reform — it is a deliberate effort to undermine the judiciary’s autonomy. Politicians seem to believe that by appointing judges through more politically influenced processes, they can guarantee decisions that align with their interests. But history has shown us time and again that this belief is dangerously short-sighted.

The judiciary in Pakistan is not easily bent to political will. Even now, there are judges on the bench who remain fiercely independent, while others clearly align with political factions or the establishment. This internal division underscores the complexity of the judicial system. But by attempting to impose greater political control over judicial appointments, the government is effectively suffocating what little independence the judiciary has left. The danger here is that by weakening the courts’ ability to function without interference, the ruling powers are setting themselves up for a future they may not foresee.

This fragmentation of judicial power will have long-lasting effects.

In the short term, political forces might enjoy the benefits of a judiciary that bends to their will, particularly through handpicked judges who owe their positions to the ruling party. But as history shows, this strategy rarely works out as planned. Judges, once seated, have often found themselves rediscovering their independence, ruling in ways that defy the expectations of those who appointed them. A judiciary that is manipulated today can become a force of resistance tomorrow, as political power shifts and new governments find themselves at the mercy of the same courts they once tried to control.

Consider what might happen three years down the road. The judges appointed by one political party may no longer serve the interests of that party, especially if a new government comes to power. Suddenly, those very judges, expected to be compliant, may start issuing rulings that challenge the new government’s agenda. The judiciary, now less beholden to any one political faction but fragmented by years of manipulation, could become a source of unpredictable and uncontrollable rulings. The very politicians who sought to curb judicial independence may find themselves cornered by the consequences of their actions.

Moreover, this destruction of the judiciary’s independence goes beyond any one government. It represents a systemic weakening of Pakistan’s legal framework, where the Supreme Court — a body that once acted as the final protector of constitutional rights — is being relegated to the role of an appellate court, with its constitutional authority diluted by the establishment of the Federal Constitutional Bench or Division, as is being proposed. This fragmentation of judicial power will have long-lasting effects, eroding the public’s trust in the judiciary as a fair and impartial institution.

In time, the consequences of these changes will likely force a return to the old system, where judges are app-oi­­nted through a process insulated from political influence. By then, however, the damage may already be done.

The judiciary may no longer command the same respect or wield the same power as a guardian of constitutional rights. And the politicians who sought to control it will be left grappling with a legal system that is fragmented, unpredictable, and ultimately uncontrollable.

This attempt to curb judicial independence, to reduce the courts to mere extensions of political power, will come back to haunt those behind it. The lesson from Pakistan’s history is clear: the judiciary, when pushed to the brink, fights back. And when it does, it is often those who sought to control it who suffer the most. The government may find that in their desire for short-term control, they have triggered long-term chaos — where the courts, far from serving their interests, become their greatest challenge.

The writer is an advocate of the Supreme Court.

Published in Dawn, October 19th, 2024