THE recent letters from Justice Mansoor Ali Shah and Justice Munib Akhtar — the two senior-most judges after the chief justice — reflect the existing quagmires in Pakistan’s justice system, and confirm that the controversial 26th Amendment has kindled widespread scepticism about the appointment procedure for the Supreme Court chief justice as well as the ‘selection’ process of judges for the constitutional bench.

Many view the amendment as an attack on the separation of powers — with reason. While an independent judiciary ensures that fundamental rights remain inalienable, these amendments can undermine the integrity of the Constitution. In his letter last month, Justice Mansoor Ali Shah also underscored the fact that the reconstitution of the judicial commission under the 26th Amendment raised questions about its constitutional legitimacy.

The letters of the two senior-most judges reflected the need for the independence of the judiciary and the trichotomy of powers, which have been highly compromised by the 26th Amendment.

Moreover, international laws cannot be overlooked as Pakistan ratified various human rights conventions. The volume of pending cases in the courts proves that Pakistan’s international human rights commitments and economic obligations are being flouted, making judicial reforms imperative. The backlog of cases is also emblematic of deeper institutional challenges, which, if left unaddressed, will hinder the country’s progress. In March 2024, there were 57,181 unresolved cases in the Supreme Court, while the Lahore High Court and Punjab’s district courts reported over a million pending cases. The Law and Justice Commission of Pakistan’s report for July to December 2023 reveals an unsettling increase in case pendency: 3.9 per cent, which comes to approximately 2.26m cases. Alarmingly, 82pc of these cases are at the district judiciary level, stressing the magnitude of the effort that is required to dispose of them.

Judicial autonomy is vital for democracy and the economy.

Such a trial of patience severely jeopardises the ordinary citizens’ access to justice, resulting in distress, diminished resource, lost time, and, above all, a severe lack of trust in the judicial system. When justice is denied, particularly at the district courts level, it creates an environment of frustration and despair; people feel disenfranchised by a seemingly compromised legal framework. Mass discontentment and deprivation of justice can trigger a breakdown in the social order, which in turn deters both domestic and foreign investors from investing in the country.

Besides, Pakistan has to fulfil its international responsibilities. It is a signatory to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as the Convention on the Elimination of all forms of Discrimination Against Women among other legal instruments. In 2023, the EU extended the Generalised System of Preferences until 2027 for developing countries, including Pakistan. These obligations mandate an absolute and across-the-board adherence to transparency and impartiality in legal proceedings.

The World Bank Enterprise Survey — described as “a firm-level survey of a representative sample of an economy’s private sector” — reported that 38pc of Pakistani firms find the labyrinthine legal system a major barrier in economic collaboration and growth; the figure drops to 14pc for the rest of South Asia. Hence, the government’s failure to honour the fundamental and economic rights enshrined in international treaties risks the country’s interests as was experienced in the Reko Diq case.

It should be stressed that honouring judicial independence and human rights obligations are critical for economic prosperity in Pakistan. The lack of an autonomous judiciary may lead to national and international challenges, particularly regarding human and economic privileges, which will deepen the existing challenges of poor economic health, a disgruntled youth, and an acutely polarised society.

Judicial independence is vital for democracy and the economy. As Pakistan navigates the complexities of implementing international commitments in its fraught domestic scenario, fostering collective trust in due process has to be seen as the first line of defence against internal and external threats. A robust and credible judicial system also reinstates the public’s faith in legal processes, promoting safety and equitable economic growth in a humane society that respects freedom and dignity.

The writer has a PhD in law. He is a former DG, FIA and currently a faculty member at SZABUL, Karachi.

Published in Dawn, January 1st, 2025