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Independence of Judiciary and Checks & Balances

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Mudassir Rizwan

Despite being a constitutional democracy, Pakistan holds the belief that the constitution can exist independently from democracy. This means that the constitution can be manipulated without affecting democracy. However, the recent attempt to pass a constitutional amendment in a manner that assumed democracy and its norms would remain unaffected was a shocking and disbelieving event. The modus operandi involved reports of harassment and kidnapping of the children, daughters, and women of certain legislators to compel their male counterparts to vote for the proposed amendment. The state’s machinery was used to carry out these actions, which was unimaginable for Pakistan. Fortunately, the proposed bill could not be presented in Parliament, which would have marked a black day if it had. Various drafts of the failed amendment circulated, and one common point among them was an attempt to weaken the powers of the Supreme Court (SC) and make it subservient to parliamentary oversight. Passing such an amendment would have plunged Pakistan into a new crisis, forgetting that the country was still facing an ongoing economic crisis.

Additionally, while the Objectives Resolution, now part of the 1973 Constitution, ensures the independence of the judiciary, several actions of the SC have exceeded its constitutional mandate. After 2014, there have been numerous examples illustrating why most politicians, as legislators, have lost patience. The SC has delivered incorrect judgments and undermined the mandates of elected governments, lowering the prestige of the SC for three main reasons.

First, a Chief Justice (CJ) of the SC played a significant role in delivering politically motivated decisions and then tried to mitigate the damage by involving the SC in public works, seeking respect in the ruins of hospitals and engaging in the construction of a dam. Secondly, the discretion vested in the chair of the CJ to pass decisions based on a monopoly over constitutional interpretation remained a point of concern, and the inclusion of like-minded judges to support the CJ added insult to injury. Thirdly, the SC attempted to substitute the parliament rather than complement it, claiming that it was merely judicial activism to address a political deficiency. These actions have led to calls for curtailment of the SC’s overreach and the establishment of a Federal Constitutional Court.

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It is now evident that politics has infiltrated all institutions of the state, impacting the judiciary, the army, and the parliament, and undermining the prospects of the National Accountability Bureau (NAB). The urgent need for infrastructure expansion since 2014 is a pressing concern, and the future of the Islamabad High Court (IHC) is a concern due to attempts to monitor and control the activities of judges.

In summary, while the independence of the judiciary must be ensured, the recent history of the SC calls for a curtailing of its overreach, and finding the right balance remains to be seen.The independence of the judiciary is undeniably crucial for upholding the rule of law, protecting individual rights, and ensuring a fair and just society. A judiciary free from external influence can act as a check on the powers of the executive and legislative branches, preventing abuse and overreach. However, while the independence of the judiciary is paramount, it is equally important to maintain a system of checks and balances, ensuring a separation of powers among the branches of government. This separation of powers serves to prevent any one branch from becoming too powerful and potentially infringing on the rights of citizens. Striking a balance between judicial independence and the need for checks and balances is essential in fostering a healthy and functional democratic system.

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