The Judiciary in Pakistan was not free in the past and it is not independent now.

The military has been using the Supreme Court of Pakistan as a rubber stamp but now there are serious questions about the integrity and impartiality of the Supreme Court.

Acting as an arm of the army, the Supreme Court appears to have a political agenda and ambitions.

Chief Justice Iftikhar Muhammad Chaudhry can be guilty of politicizing the Judiciary. In the name of judicial independence and judicial activism Justice Iftikhar Chaudhry and his associates may also be accused of abusing their powers. Nevertheless, when it comes to challenging the military and its secret services, so far, the Supreme Court has been teeth-less but the Court does target politicians. Some experts believe that the Supreme Court is transcending its constitutional responsibilities and powers, which is sad and a serious blow to the rule of law in Pakistan.

Judges of higher courts often give remarks and observations that make headlines. In many countries the media are not allowed inside the courtrooms. Also there are strict regulations about the media coverage of court hearings but in Pakistan judges score points in the presence of the media. The current environment in the Pakistani Supreme Court has turned the Court into a circus that pleases the media circus.

The Supreme Court has almost given a verdict in the memo case, which is surprising and shocking. The alleged memo was written by a U.S. citizen Mansoor Ijaz, who claimed that he had done so on the verbal instructions of Husain Haqqani, a Pakistan’s former envoy to Washington.

The alleged memo did not carry sender’s name and it wasn’t signed by anyone either. It is understandable if the media or some politicians create a scandal out of  such an issue but when a superior court takes up a matter like this and gives a hasty decision without hearing the other side, one can question judges’  motives.

The memo was ignored by the Pentagon, they did not consider it serious but Pakistani judges are considering an unsigned piece of paper with the implication that it could be an act of high treason. It is not a treason case at all  and the judges can be accused of playing politics.

There are chronic systematic problems in the Pakistani Judiciary. Corruption, inefficacy and incompetence are common in the Judiciary. The public suffers in the courts due to corruption and nepotism. Often lawyers and judges join hands in looting the public, particularly in lower courts. Hundreds and thousands of cases are pending in courts due to laziness of judges and sluggish court processes.

From lower to higher courts, the system and procedures of the appointment of judges need full overhauling. Many become judges only for their career development, not to deliver justice. They don’t see their profession as a social service but a way to get power, money and status. Such people shouldn’t be judges at all.

Lack of transparency in judges’ promotions and performance also requires attention. There are complaints about unjust and unfair practices within the Judiciary. The recent resignation by a senior judge of the Peshawar High Court is an example of that discontent.

Pakistani jails are overcrowded because the Judiciary doesn’t perform its duties. A large number of Pakistanis are victims of our Judiciary’s injustices. Thousands of innocent people have to spend years in jails because judges can’t provide them justice. 

After his restoration, Chief Justice Iftikhar Chaudhry should have focused his attention on clearing the mess in the Pakistani Judiciary. The task was so huge that he wouldn’t complete it by 2013, the time of his retirement, but at least he could have started a cleaning process within the Judiciary.

The other noble thing that he could have done to restore the credibility and integrity of the Judiciary was to seek a sincere apology from the people of Pakistan for the dark and the dirty role of the Pakistani Judiciary. He could have publically condemned the role of those Supreme Court and High Court judges who had sold their souls to military dictators and in doing so had harmed the country. He could have tried all such judges under the Article Six of the constitution so that in future judges wouldn’t commit treason by supporting and legitimizing unconstitutional acts of military dictators.

Justice Iftikhar Chaudhry likes to take sue motto actions but he is selective in choosing cases. He didn’t open Air Marshal Asghar Khan’s petition for hearing, which is pending in the Court for the last several years.

The honorable Chief Justice also did not take sue motto action against General Pervez Musharraf and his associates for violating the constitution. However,  his Excellency Justice Iftikhar Chaudhry was among the judges who had legitimized the illegal takeover by General Musharraf in 1999. Therefore perhaps it is difficult for the champion of justice and judicial independence, Mr. Justice Iftikar Chaudhry, to disapprove what once he had approved.

Perhaps formation of a new Supreme Constitutional Court (SCC) is a solution for the continuing power struggle between Pakistani state organs. The SCC can be formed on the Italian model of the Constitutional Court where the one third of the judges in the Constitutional Court are appointed by the Parliament, one third by the President and one third by the Supreme Judicial Council.

If formed, the SCC of Pakistan can be assigned with interpreting and defining constitutional issue. The SCC, not the current Supreme Court, should define jurisdictions of different state organs. 

Shiraz Paracha is a journalist and analyst. He can be reached at: shiraz_paracha@hotmail.com

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