essay on judiciary in pakistan

The politicisation of judiciary and the judicialisation of politics — who is to blame?

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.

SC to announce all-important verdict on PTI petition challenging delay in Punjab polls tomorrow

Role of the judiciary

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Malik Abdul Latif Tahir

Independence of Judiciary and Pakistan

The independence of the judiciary in Pakistan is a vital issue that has implications for the country’s democracy, the rule of law, human rights, and stability. The judiciary is supposed to be an independent and impartial arbiter of justice, free from any interference or influence from the executive, the legislature, or any other external forces. However, the history of Pakistan shows that the judiciary has often been subjected to various forms of pressure, manipulation, and subversion by the political and military elites, as well as by religious and sectarian groups. This has undermined the credibility, integrity, and effectiveness of the judicial system and has eroded the public trust and confidence in the courts.

The significance of judicial independence in Pakistan can be explained from various perspectives.

First, judicial independence is essential for upholding the Constitution and the fundamental rights of the citizens. The Constitution of Pakistan entrusts the superior judiciary with the obligation to preserve, protect and defend the constitution. The judiciary also has the power of judicial review, which enables it to examine the validity and constitutionality of the laws and actions of the other branches of government. The judiciary can also issue writs of habeas corpus, mandamus, prohibition, quo warranto, and certiorari to protect the rights and liberties of individuals against arbitrary or unlawful detention, discrimination, abuse of power, or violation of due process. With judicial independence, these constitutional functions and powers would be protected from the interference or influence of other actors.

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Second, judicial independence is crucial for maintaining the separation of powers and checks and balances among the three branches of government. The separation of powers is a principle that divides the state authority into legislative, executive, and judicial branches, each with its own functions and responsibilities. The checks and balances are mechanisms that prevent any branch from becoming too powerful or dominant over the others. The judiciary plays a key role in ensuring that each branch acts within its constitutional limits and respects the authority of the others. The judiciary also acts as a guardian of democracy by ensuring free and fair elections, resolving electoral disputes, and adjudicating on matters related to political parties, candidates, and voters. Without judicial independence, the separation of powers and checks and balances would be distorted or disrupted by the encroachment or domination of one branch over the others.

Third, judicial independence is important for establishing the rule of law and accountability in society. The rule of law is a principle that requires that all persons and institutions are subject to and accountable to the law that is fairly applied and enforced. The rule of law also implies that no one is above the law and that everyone is equal before the law. The judiciary is responsible for interpreting and applying the law in a consistent and impartial manner, regardless of the status or position of the parties involved. The judiciary also holds the other branches of government accountable for their actions and decisions by reviewing their legality and constitutionality. Without judicial independence, the rule of law and accountability would be undermined or violated by the prevalence of corruption, nepotism, favouritism, or impunity in society.

Fourth, judicial independence is vital for ensuring peace and stability in the country. Pakistan is a diverse and complex country with various ethnic, linguistic, religious, sectarian, regional, and ideological groups. These groups often have conflicting interests and demands that may lead to violence or unrest. The judiciary can play a constructive role in resolving these conflicts peacefully through dialogue, mediation, arbitration, or adjudication. The judiciary can also promote social harmony and cohesion by protecting the rights and interests of minorities, women, children, marginalized groups, and vulnerable sections of society. Without judicial independence, these conflicts would escalate or persist without resolution or redress. This would create more chaos or instability in the country.

Therefore, judicial independence in Pakistan is a significant issue that has multiple dimensions and implications. Judicial independence is essential for upholding the Constitution and fundamental rights, maintaining separation of powers and checks and balances, establishing rule of law accountability, and ensuring peace and stability in the country. However, judicial independence has often been challenged or threatened by various factors such as political interference, military intervention, religious extremism, media pressure, public opinion, etc. Therefore, it is imperative that all stakeholders respect and support judicial independence as a cornerstone of democracy development in Pakistan.

Republic Policy Magazine October 2023

Reforming the judiciary in Pakistan is a complex and challenging task that requires a holistic and collaborative approach from all stakeholders, including the government, the judiciary, the legal fraternity, the civil society, and the international community. The following are the key points to reform the judiciary in Pakistan.

Strengthening the judicial independence and accountability:  The judiciary should be free from any interference or influence from the executive, the legislature, or any other external forces. The judiciary should also be accountable for its performance and conduct and subject to effective oversight and disciplinary mechanisms. The appointment, promotion, and removal of judges should be based on merit, transparency, and fairness. The judicial budget should be adequate and autonomous, and the judicial salaries and benefits should be commensurate with their responsibilities and qualifications.

Improving judicial efficiency and quality:  The judiciary should adopt modern case management systems and technology to rationalize court processes, reduce delays, and improve transparency. The judiciary should also introduce alternative dispute resolution (ADR) mechanisms, such as mediation and arbitration, to provide quicker and cost-effective dispute resolution methods. The judiciary should also enhance its skills and knowledge by providing ongoing education and training programs for judges and legal professionals. The judiciary should also ensure that its decisions are consistent, coherent, and well-reasoned and that they reflect the current legal principles and social realities.

Enhancing judicial accessibility and responsiveness:  The judiciary should improve access to justice for marginalized communities by providing legal aid, establishing legal aid centres, and promoting pro bono services1. The judiciary should also ensure that its services are affordable, convenient, and user-friendly for all citizens. The judiciary should also address the diverse needs and expectations of different groups in society, such as women, children, minorities, vulnerable sections, etc. The judiciary should also foster public trust and confidence by engaging in effective communication and outreach activities with the public.

Reforming the judicial laws and procedures:  The judiciary should revise and update the outdated and faulty laws governing economic transactions, land revenue, criminal justice, etc., to make them applicable in the present world. The judiciary should also simplify and streamline the judicial laws and procedures to make them more uniform and efficient. The judiciary should also harmonize the judicial laws and procedures with the constitutional provisions and international standards of human rights.

Promoting judicial innovation and creativity:  The judiciary should embrace innovation and creativity in its functions and services. The judiciary should use modern tools and technology in the investigation process, such as biometrics, forensics, digital evidence, etc.4. The judiciary should also explore new ways of delivering justice, such as online courts, mobile courts, etc. The judiciary should also encourage research and development in the field of law and justice.

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A Strong Judiciary as a Crisis for Democracy: A ‘Law and Development’ Study from Pakistan

By the late 1990s, international financial institutions prescribed a ‘good governance’ paradigm that sought to empower the judiciary to curb ‘state capture’ by the corrupt political elites of developing countries. Good governance was supposed to act as a midwife to economic development, providing the ‘rule of law’ for the free market reforms of structural adjustment programs that had hitherto failed to provide much success. This article examines the implementation of ‘good governance’ in Pakistan, arguing that empowering the judiciary served to weaken an already weak legislature. The tangible issues of popular political representation and economic redistribution were displaced by the discourses on the control of corruption and the rule of law. Based on this experience, the article encourages a shift in law and developmental theorizing to focus on forms of legislature and democratic rule and a redefined role for the ‘civil society’ within this.

Acknowledgments

Special thanks to Sara Abraham, Noaman G. Ali, Kasim Tirmizey and Adil Chatta for research help and for reviewing this paper.

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Judicial Independence in Pakistan

• First Online: 24 February 2017

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This chapter examines the legal principle of judicial independence in Pakistan in two stages. First, a brief analysis of select secondary sources, including academic commentary and the views of participants in Pakistan’s legal system, distills themes that are seen by observers as important to the meaning and practice of judicial independence in Pakistan. From this starting point, the study identifies and examines a number of primary legal sources related to the themes identified, including constitutional arrangements, legislation, and reported judicial decisions. These primary sources are used to construct a narrative of judicial independence in Pakistan from the time of its independence in 1947 to the first half of 2016. While the study draws on illustrative scholarship and commentary to identify themes, its focus is on the identification and analysis of primary legal sources that reflect institutional arrangements and shed light on the interactions between courts and other branches of government. The second stage of this study considers implications and lessons learned from the experience of judicial independence in Pakistan.

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See, e.g., Larkins ( 1996 ), p. 618. Although beyond the scope of this study focused on primary legal sources, there are a number of important historical and political works on Pakistan that provide additional detail in relation to the country’s present and past economic, political, and social context. See, e.g. , Wheeler ( 1970 ), Waseem ( 1989 ), Noman ( 1990 ), Shehab ( 1995 ), Kennedy ( 1996 ), Malik ( 1996 ), Shafqat ( 1997 ), Ahmed ( 1998 ), Ziring ( 1998 ), Akhtar ( 2000 ), Rizvi ( 2000 ), Desai and Ahsan ( 2005 ), Cloughley ( 2006 ), Kāẓmī ( 2009 ), Siddiqi ( 2012 ), Long ( 2015 ).

The division of time into these two periods is not based on a single event. Instead, the division is designed to facilitate a reflection on the overall developments after the first 50 years.

Pakistan’s population grew by more than 23 % over the most recent 10 years (from 153 million in 2005 to 189 million in 2015) while its per capita gross domestic product doubled during the same period ($714 in 2005 to $1429 in 2015): World Bank ( 2015 ). With a gross national income per capita of $14,400 in 2015, the World Bank classifies Pakistan as a lower middle income economy. All amounts in USD.

Talbot ( 2009 ), pp. 3–13, 50.

Abbasi ( 2012 ).

National Accountability Bureau ( 2002 ).

Islamic teaching also provides for an independent judiciary to determine disputes, see e.g., Cotran and Sherif ( 1999 ), Lau ( 2004 ), and Sherif and Brown ( 2003 ) who write that “the independence of the judiciary is a very well established principle in the Islamic Shari’a ”. This study focuses on the role of secular courts established on the English common law model. For an excellent overview of the use of precedent in Pakistan’s secular legal system see Munir ( 2014 ).

Jinnah’s ambition to establish an independent state as a homeland for India’s Muslims was initially opposed by other Indian Islamic parties who saw him as an advocate of the English legal system: Khan ( 2012 ), p. 291. Jinnah died 1 year into office.

Jinnah ( 1947 ).

The enactment of the Human Rights Act 1998, c. 42 incorporating the European Convention ( 1953 ) provides the English courts with the power to invalidate subordinate legislation or executive action on the basis of the Art. 6(1) guarantee of an independent and impartial tribunal. This power, to date, has been used sparingly by English courts: it does not defeat ‘dependent’ administrative decision-makers, such as government ministers exercising power under statute, nor has it radically altered the use of lay magistrates in England who enjoy none of the traditional protections of judicial independence such as guaranteed tenure, compensation, and administrative independence.

Khan ( 2004 ).

Khan ( 2016 ).

Newberg ( 1995 ).

Ibid , p. 11.

Ibid , pp. 2, 11.

Ibid , p. 5.

Ibid , pp. 12–13, Newberg writes that “[b]y allowing courts to operate, even if under stricture, the state has been the ultimate beneficiary of judicial largesse.”

Ibid , pp. 11–12.

Ibid , p. 6.

Ibid , p. 33.

Ibid , p. 13.

Ibid , pp. 4–5, 33.

Ibid , pp. 6–7, 13.

Ibid , pp. 5–6.

Ibid , pp. 248–250.

Ibid , p. 8.

Ibid , p. 250.

Lee ( 2010 ).

Ibid , p. 371.

Ibid , p. 372.

Ibid , p. 373.

Ibid , pp. 381–384; see the discussion of the judicial crisis below.

Ibid , pp. 386–387.

Constitution of Pakistan (1956), Constitution of Pakistan (1962).

Khan ( 2012 ), p. 8. For a discussion of the most recent amendment, see Newberg ( 2016 ).

Constitution (Nineteenth Amendment) Act, 2010, 1 (2011).

The Nineteenth Amendment to the Constitution made several changes to the judicial appointment process in accordance with a Supreme Court ruling: see discussion below.

Constitution (Twentieth Amendment) Act, 2012, 5.

Ibid , Statement of Objects and Reasons.

In the case where the amendment alters the ‘limits’ of a province, a two-thirds majority of the province’s assembly is also required: Art. 239(4).

Arts. 141–144 distribute legislative powers between the federal government and the provinces.

Art. 41 sets out the qualifications and election procedure for the President while Art. 44 sets out the term of office for the President. It appears that under Art. 44(2) a single individual may hold the office of President for more than two terms provided they are not consecutive.

Arts. 46, 48. Note that under Art. 48(1), the President may require the Cabinet or Prime Minister to reconsider its advice although the President must act in accordance with the reconsideration within a period of 10 days.

Arts. 232–237.

Arts. 91(1), 91(6).

Arts. 91(3)-91(5).

Arts. 58, 90(1). For a detailed analysis of a previous version of Article 58, which provided the power for the President to dissolve the National Assembly, see Siddique ( 2006 ).

Art. 101(1).

Officially styled the Federal Shariat Court.

Art. 175(2).

Art. 187(1).

Art. 187(2).

Arts. 175, 184, 185, 186.

See, e.g. , Ontario (Attorney General) v Canada (Attorney General) , [1912] AC 571, where the Privy Council upheld a legislated reference procedure to the Supreme Court of Canada.

Supreme Court Rules, SRO 1159(I)/80.

Art. 199(1).

Huq ( 2003 –2004), p. 26, the judicial appointment process is discussed further below.

Art. 203D(1).

Art. 203D(3).

Art. 203DD with the exception of converting an acquittal into a conviction.

Art. 203G. Despite the parallel system of Islamic courts, it is evident from an analysis of the case law that secular higher courts have influenced the role of Islam in the legal system through their jurisprudence: Lau ( 2006 ).

See e.g., Lau ( 2006 ) and Nelson ( 2011 ).

Art. 175A(3).

Art. 193(2).

Arts. 177(2), 203C(3).

Arts. 178 (Supreme Court), 194 (High Courts), 203C(7) (Federal Sharia Court). The text of the oath is found in the Third Schedule to the Constitution.

Arts. 179, 195.

Hussain ( 2011 ), p. 20.

Arts. 8–28.

Art. 10(3).

Art. 232(1).

Art. 232(2).

Art. 233(1).

Art. 232(2)(c).

Provisional Constitutional Order, 1999, 2-10/99 Min. I.

Section 2(1) of the Provisional Constitutional Order. 1999, 2-10/99 Min. I. stated that “[n]otwithstanding the abeyance of the provisions of the Constitution of the Islamic Republic of Pakistan, hereinafter referred to as the Constitution, Pakistan shall, subject to this Order and any other Orders made by the Chief Executive, be governed, as nearly as may be, in accordance with the Constitution.”

Hussain ( 2011 ), ss 11.2–11.4.

Supreme Court of Pakistan ( 2016 ).

Hussain ( 2011 ), p. 28.

Reuters ( 2012 ).

Art. 236(2).

Art. 24(4).

Art. 41(6).

Art. 69(1).

Arts. 99(2), 139(2).

Art. 105(2).

Art. 155(6).

Constitution (Amendment) Order 1985, Art. 165A(2).

Art. 212(2).

Art. 239(5).

Art. 245(2).

See, e.g., Zafar Ali Shah v General Pervez Musharraf, Chief Executive of Pakistan, PLD 2000 SC 869.

The Objectives Resolution (1949), now annexed to the Constitution and incorporated into its text through Art. 2A, was passed by the Constituent Assembly in March 1949 and provides that “the independence of the Judiciary shall be fully secured.”

Both the Preamble and Art. 2A, incorporating the Objectives Resolution, guarantee an independent judiciary, which has been treated as an enforceable legal right by the courts, discussed below.

Art. 81(a)(i).

Arts. 81(b), 81(d).

Arts. 209(6)-209(7) (removal procedure), Arts. 179, 195 (retirement for judges of the High Courts and the Supreme Court).

Arts. 187(2), 190.

Art. 204(2).

Third Schedule.

Constitution (Nineteenth Amendment) Act, 2010, 1 (2011) and Constitution (Twentieth Amendment) Act, 2012, 5.

See discussion below.

Ghias ( 2010 ), p. 997.

Ibid , p. 998.

Supreme Court of Pakistan ( 2009 ).

Ibid , Art. XI.

Art. 209(8).

Art. 209(5).

Dawn ( 2011a ).

For a critical overview of the functioning of the Supreme Judicial Council see Niazi ( 2016 ).

Arts. 209(4), 209(6).

Siddique (2013), pp. 267–269.

Ibid , p. 302.

Iqbal ( 2015 ).

Art. 142(d).

Acts of Parliament (2014).

Art. 142(c).

Arts. 142(b), 143.

Art. 59(1).

Art. 59(3).

Arts. 73(1), 73(1A).

Arts. 51(6), 213–226.

Arts. 52, 58.

Arts. 91(4), 91(5).

Art. 91(7).

Art. 70(3).

Arts. 75(1), 75(2).

See Lau ( 2004 ) for an analysis of how judges drew upon Islamic principles to preserve their independence.

Indian Independence Act 1947, 10 & 11 Geo 6, c. 30; see Khan ( 2004 ), p. 67.

Government of India Act 1935, 26 Geo 5 & 1 Edw 8, c. 2.

Indian Independence Act 1947, 10 & 11 Geo 6, c. 30.

Newberg ( 1995 ), p. 37.

Act of Settlement 1701, 12 and 13 Will, c. 2. See also the Commissions and Salaries of Judges Act of 1760, 1 Geo 3, c. 23. See, e.g., Section 200(2)(b) of the Government of India Act 1935, 26 Geo 5 & 1 Edw 8 c. 2 that sets out the removal process for judges of the Federal Court on the grounds of “misbehaviour or of infirmity of mind or body” but only if removal was recommended by the Privy Council. Section 201 of the Act establishes that the salaries, leave, and pension benefits for judges of the Federal Court shall not be “varied to his disadvantage after his appointment.”

Newberg ( 1995 ), p. 39.

Ibid , pp. 39–40.

Ibid , pp. 40–41.

Khan ( 2004 ), p. 129.

Federation of Pakistan v Moulvi Tamizuddin Khan , PLD 1955 FC 240, p. 251.

Ibid , p. 300.

Khan ( 2004 ), p. 140.

Ibid , pp. 141–142.

Ibid , pp. 142–143.

Newberg ( 1995 ), pp. 46–47.

Ibid , p. 49.

Ibid , p. 68.

Emergency Powers Ordinance IX of 1955.

Khan ( 2004 ), p. 143.

Usif Patel v The Crown , PLD 1955 FC 387.

Ibid , pp. 391–392.

Ibid , p. 396.

Ibid , pp. 446–447.

Reference by HE the Governor-General , PLD 1955 FC 435.

For a detailed overview of the doctrine of necessity, see Wolf-Phillips ( 1979 ).

Reference by HE the Governor-General , PLD 1955 FC 435, p. 445.

Ibid , p. 448.

Ibid , p. 479.

Ibid , p. 486.

Khan ( 2004 ), p. 153.

Newberg ( 1995 ), p. 55.

Ibid , pp. 60–61.

Khan ( 2004 ), p. 158.

Newberg ( 1995 ), p. 69.

Khan ( 2004 ), pp. 197–209.

Ibid , p. 210.

Laws (Continuation in Force) Order (1958).

Khan ( 2004 ), p. 212.

The State v Dosso , PLD 1958 SC 533.

Kelsen ( 1945 ).

The State v Dosso , PLD 1958 SC 533, p. 538.

Ibid , pp. 538–539.

Ibid , p. 540.

Ibid , p. 541.

Khan ( 2004 ), p. 217.

Newberg ( 1995 ), p. 79.

Ibid , pp. 79–80.

Khan ( 2004 ), p. 216.

Pakistan’s GDP growth reached 10.4 % in 1965: World Bank ( 2015 ).

Khan ( 2004 ), p. 345.

Ibid , pp. 254–255.

Ibid , judicial review of the constitutional validity of legislation was made clear following the first amendment: ibid , p. 275.

Asma Jilani v Government of the Punjab , PLD 1972 SC 139, p. 161.

Khan ( 2004 ), pp. 323–329.

Ibid , p. 363.

Ibid , p. 375.

Ibid , pp. 375–376.

Ibid, pp. 385–388.

Ibid , pp. 406–407.

Time ( 1971 ). Bangladesh set up a war crimes court in 2010 to investigate crimes committed during the conflict: Al Jazeera ( 2010 ).

Khan ( 2004 ), p. 434.

Khan ( 2004 ), p. 437.

Asma Jilani v Government of the Punjab , PLD 1972 SC 139.

Asma Jilani v Government of the Punjab , PLD 1972 SC 139, p. 166. The Supreme Court adopted this position, at least in part, to refute the Attorney General’s argument that the judiciary had given tacit approval to martial law: ibid , p. 203.

Asma Jilani v Government of the Punjab , PLD 1972 SC 139, pp. 197–199.

Asma Jilani v Government of the Punjab , PLD 1972 SC 139, pp. 178–179.

Ibid , p. 163.

Ibid , pp. 184–185.

Ibid , pp. 187–189.

Ibid , p. 190.

Ibid , pp. 190–192.

Ibid , p. 204.

Ibid , pp. 205–206.

Ibid , p. 207.

Ibid , p. 208. The Supreme Court also noted that the National Assembly ratified Bhutto’s assumption of power and an interim constitution, which “may well have radically altered the situation.”

Newberg ( 1995 ), p. 129.

Ibid , p. 122.

Ibid , p. 132.

Ibid , p. 126.

The State v Zia-ur-Rehman , PLD 1973 SC 49.

Ibid , p. 66.

Ibid , p. 69.

Ibid , p. 70.

Khan ( 2004 ), pp. 467–472.

Ibid , p. 555.

For a discussion of the election results see Khan, ibid , pp. 556–562.

Ibid , pp. 563–564.

Ibid , p. 571.

Laws (Continuance in Force) Order, 1977, CMLA Order I.

Begum Nusrat Bhutto v Chief of Army Staff and Federation of Pakistan , PLD 1977 SC 657, p. 704.

Khan ( 2004 ), p. 581.

Begum Nusrat Bhutto v Chief of Army Staff and Federation of Pakistan , PLD 1977 SC 657.

Ibid , p. 692.

Ibid , pp. 692–693.

Ibid, p. 721.

Ibid , p. 694.

Ibid , pp. 698, 702.

Ibid , p. 702.

Ibid , p. 703.

Ibid , p. 705.

Ibid , p. 716.

Newberg ( 1995 ), p. 169.

Ibid , pp. 163, 168.

Ibid , p. 168.

Khan ( 2004 ), p. 599.

Zulfiqar Ali Bhutto v The State , PLD 1979 SC 38.

Khan ( 2004 ), p. 615.

Ibid , p. 617.

Ibid , p. 624.

Ibid , pp. 627–628.

Ibid , pp. 640–641. For a detailed analysis of the role of Islam in the legal system of Pakistan see Lau ( 2006 ).

Khan ( 2004 ), pp. 635–636.

Ibid , pp. 637–638.

Ibid , pp. 661–666.

Provisional Constitutional Order, 1981, CMLA Order 1.

Khan ( 2004 ), p. 647.

Ibid , p. 648.

Ibid , p. 649.

Ibid , p. 675.

Ibid , p. 697.

Ibid , p. 722.

Khawaja Ahmad Tariq Rahman v The Federation of Pakistan , PLD 1992 SC 646.

Ibid , p. 666 per Justice Shafiur Rahman.

Khan ( 2004 ), p. 734.

Ibid , p. 752.

Muhammad Nawaz Sharif v Federation of Pakistan , PLD 1993 SC 473.

Khan ( 2004 ), pp. 755–758.

Ibid , p. 793.

Ibid , pp. 793–797.

Ibid , p. 827.

Ibid , p. 833.

Ibid , p. 924; Talbot ( 2009 ), p. 392.

Khan ( 2004 ), pp. 926–933; the Kargil war involved the withdrawal of Pakistan’s forces to the Kashmir line of control and was perceived by Pakistan as an international embarrassment. General Pervez Musharraf’s address to the nation of 13 October 1999 reported that the country faced “turmoil and uncertainty” from the destruction of the nation’s institutions and economy and that the armed forces were the “last remaining viable institution” that was obligated to provide the country with “stability, unity and integrity”: Musharraf ( 1999 ).

Khan ( 2004 ), p. 783.

Ibid , pp. 784–785.

Al-Jehad Trust v Federation of Pakistan , PLD 1996 SC 324.

Ibid , p. 389.

Ibid , pp. 389, 399, 404.

Ibid , p. 365.

Ibid , p. 408.

Ibid , p. 366.

Ibid , p. 419.

Ibid , p. 428.

Khan ( 2004 ), p. 787.

Ibid , p. 788.

Ibid , p. 787.

Ibid , pp. 823–824.

Ibid , p. 825.

Ibid , pp. 825–826.

Ibid , p. 826.

Ibid , p. 829.

Asad Ali v Federation , PLD 1998 SC 161.

Al-Jehad Trust v Federation of Pakistan , PLD 1996 SC 324. Khan ( 2004 ), p. 830.

Khan ( 2004 ), p. 831.

Ibid , pp. 802–803.

Khan Asfandyar Wali v Federation of Pakistan , PLD 2001 SC 607.

Ibid , paras 164–165.

For a comparative discussion of emergency powers in India and Pakistan see Kalhan ( 2010 ).

Mahmud ( 1993 ). See also Mahmud ( 1994 ).

Mahmud ( 1993 ), pp. 1302–1305.

India’s Supreme Court developed innovative constitutional doctrines during this time, such as the basic structure doctrine, which holds that certain basic features of the Constitution cannot be changed even though the process of constitutional amendment: Kesavananda Bharati v The State of Kerala , AIR 1973 SC 1461.

Section 2(1) of the Provisional Constitutional Order 1999, 2-10/99 Min. I. stated that “[n]otwithstanding the abeyance of the provisions of the Constitution of the Islamic Republic of Pakistan, hereinafter referred to as the Constitution, Pakistan shall, subject to this Order and any other Orders made by the Chief Executive, be governed, as nearly as may be, in accordance with the Constitution.” President Muhammad Rafiq Tarar continued as President: Khan ( 2004 ), p. 933.

Section 7 of the Provisional Constitutional Order 1999, 2-10/99 Min. I.

Oath of Office (Judges) Order 2000; see Khan ( 2004 ), pp. 934–935.

Khan ( 2004 ), p. 935.

Qureshi ( 2010 ), p. 491.

Zafar Ali Shah v General Pervez Musharraf, Chief Executive of Pakistan, PLD 2000 SC 869.

Ibid . Although presumably new judges would take the place of those who refused to take a new oath to keep the courts operational, as happened with the six judges of the Supreme Court who refused to take the fresh oath.

The Times of India ( 2008 ).

Legal Framework Order, 2002, Chief Executive’s Order No 24 of 2002. Note that Musharraf had dismissed President Rafiq Tarar and appointed himself President on 20 June 2001: Qureshi ( 2010 ), p. 492.

Qazi Hussain Ahmed’s Case , PLD 2002 SC 853.

Ibid , para 61.

Legal Framework Order, 2002, Chief Executive’s Order No 24 of 2002.

Constitutional Petition No 36 of 2002 , para 7.

Constitutional Petitions Nos 13, 14, 39 & 40 of 2004 & 2 of 2005 .

Ibid , para 30.

Ibid, para 40.

Supreme Court Bar Association v Federation of Pakistan , PLD 2002 SC 939.

Ibid , p. 981.

Ibid , pp. 981–982.

Ibid , p. 983.

Ibid , p. 987.

Huq ( 2003 –2004), p. 32.

Talbot ( 2009 ), pp. 417–418.

United Nations Human Rights Council ( 2008 ), para 233.

Ibid , para 234.

Constitutional Petition No 21 of 2007 , paras 70, 102.

Ibid , para 54.

Ibid , para 55.

Ibid , paras 57, 59.

Ibid , paras 122, 134.

Ibid , para 157.

Ibid , para 198.

Ibid , para 279 per Justice Muhammad Nawaz Abbasi.

Talbot ( 2009 ), pp. 419–420.

Provisional Constitutional Order No 1 of 2007 (amended 15 November 2007).

Harvard Law Review Notes ( 2010 ), p. 1715.

Ibid , pp. 1716–1717.

Ibid , p. 1719.

Ibid , p. 1720.

Ibid , p. 1725.

Talbot ( 2009 ), p. 428.

Ibid , p. 429.

Ibid , p. 432.

Sindh High Court Bar v Federation of Pakistan , PLD 2009 SC 789 (short order), PLD 2009 SC 879 (full reasons).

Sindh High Court Bar v Federation of Pakistan , PLD 2009 SC 789, p. 799.

Ibid , pp. 799–800.

Sindh High Court Bar v Federation of Pakistan , PLD 2009 SC 789, p. 800.

Ibid , p. 802.

Ibid , pp. 801–802.

Ibid , pp. 800–801.

Ibid , p. 804.

Ibid , pp. 804–805.

Constitution (Seventeenth Amendment) Act, 2003, 3.

Constitution (Eighteenth Amendment) Act, 2010, 10.

See e.g. , Waseem ( 2012 ), pp. 28–30 who notes that the ‘personal aura’ of the Chief Justice played a role in shaping the direction of the court in looking outward instead of a needed inward focus to improve the functioning of the justice system. See also an illuminating analysis by Kalhan ( 2013 ) who argues that the judiciary in Pakistan has placed the country in a ‘gray zone’ of institutional imbalance because of its unqualified view of judicial independence, which needs to achieve a new balance between autonomy and restraint. See also Ahmed ( 2015 ) for an account of judicial activism during this period and Cheema ( 2016 ) for an account that focuses on the nature and consequences of the politics of the Chaudhry Court.

Art. 184(3) of the Constitution provides the Supreme Court with the power to make an order if it considers that there is a question of public importance relating to any of the fundamental rights guaranteed in Chapter I of Part II of the Constitution.

Ghias ( 2010 ).

Ibid , p. 999 suggests that this may have resulted from judicial exchanges between Pakistan and India.

Alam ( 2008 ), p. 2, see generally Menski et al. ( 2000 ), Khan ( 2011 ), and Khan (Public Interest Litigation) ( 2015b ).

Alam ( 2008 ), p. 2.

Ibid , p. 3 notes the potential influence of the public interest model developed by the Indian Supreme Court.

Benazir Bhutto v President of Pakistan , PLD 1988 SC 388.

Ibid , pp. 416, 488, cited in Alam ( 2008 ), p. 2 who refers to a quote from the former Chief Justice Ajmal Miam who describes the adversarial system as an “inherited evil” as it prevents large groups of persons from obtaining constitutional justice.

Alam ( 2008 ), pp. 8–9.

Alam ( 2008 ), p. 5 highlights the case of M. Ismail Qureshi v M. Awais Qasim , 1993 SCMR 1781, where the Supreme Court converted private litigation into public interest litigation, inviting and hearing from a wide range of stakeholders.

Supreme Court of Pakistan ( 2014b ).

Supreme Court of Pakistan ( 2011 ), p. 129.

Supreme Court of Pakistan ( 2011 ), p. 129; Hussain ( 2011 ), p. 15 notes that legislative reform was brought about through the system in relation to the Bonded Labour System (Abolition) Act, 1998, 19 the Prohibition of Smoking and Protection of Non Smokers Health Ordinance, 2002, F. No. 2(1)/2002-Pub., the Prohibition of Kite Flying (Amendment) Act, 2009, 14 and the Human Organs and Tissues Act, 2010, 6 among others.

Hussain ( 2011 ), p. 15.

Ghias ( 2010 ), pp. 991–996.

Dharshan Masih’s Case , PLD 1990 SC 513.

See e.g., Suo Motu Case No 14 of 2009 , an action based on a press clipping in the Daily News about land dealings.

Ghias ( 2010 ), p. 995.

Supreme Court of Pakistan ( 2012 ).

After visiting Pakistan in 2012, Special Rapporteur Gabriela Knaul stated that she commended “the use of inherent powers of the Supreme Court in recent cases related to gross human rights violations” although she called for clear criteria on the use of suo motu : Dawn ( 2012d ).

Hussain ( 2011 ).

Alam ( 2008 ), pp. 4–5.

Ibid , pp. 12–13.

Ghias ( 2010 ), p. 992, see Saad Mazhar v Capital Development Authority , 2005 SCMR 1973.

Ghias ( 2010 ), p. 993.

Ibid , see Maulvi Iqbal Haider v Capital Development Authority, PLD 2006 SC 394.

Ghias ( 2010 ), pp. 993–994.

Constitutional Petition No 9 of 2006 & Civil Petition Nos 345 & 394 of 2006 .

Ibid ; Ghias ( 2010 ), pp. 994–995.

Nadeem Ahmed v Federation of Pakistan , PLD 2010 SC 1165.

See Siddique ( 2010 ) for a discussion of the Eighteenth Amendment leading up to the case.

Nadeem Ahmed v Federation of Pakistan , PLD 2010 SC 1165, p. 1180; Art. 239(5). The Supreme Court itself has held that it did not have the power to look at the substance of constitutional amendments in Constitutional Petitions Nos 13, 14, 39 & 40 of 2004 & 2 of 2005 .

Nadeem Ahmed v Federation of Pakistan , PLD 2010 SC 1165, p. 1180.

Ibid , p. 1181.

Ibid , p. 1182.

Nadeem Ahmed v Federation of Pakistan , PLD 2010 SC 1165, pp. 1183–1184. The decision has been criticised by commentators on the basis that it invokes judicial independence in a case where the process of the commission is simply a matter of mechanics not principle and that the judiciary left little scope for parliamentary contributions: Sattar ( 2012 ), pp. 85–86.

19th Amendment Draft (2010).

Munir Hussain Bhatti v Federation of Pakistan , PLD 2011 SC 407.

Ibid , p. 443.

Ibid , pp. 444–445.

Ibid , p. 446.

Rizvi (2015). See also Zafar Ali Shah v General Pervez Musharraf, Chief Executive of Pakistan, PLD 2000 SC 869, discussed above.

Constitutional Petition No 12 of 2010, etc. , p. 901.

Iqbal ( 2011 ).

See Suo Moto Action Regarding Death of more than 90 Heart Patients under Treatment in Punjab Institute of Cardiology on Account of Spurious Drugs , in which suo motu action was taken in relation to the “death of more than 90 heart patients under treatment in Punjab Institute of Cardiology on account of spurious drugs”. It is not clear from the judgment itself on what legal grounds the suo motu action was initiated although suo motu is seen as connected to fundamental rights: see Art. 184(3).

The Nation ( 2012 ).

CMA Nos 4343, 5436 and 5869 of 2014 in SMC No 1 of 2005 .

CMA No 3221/2012 in SMC No 25/2009 , para 1.

Supreme Court of Pakistan (2015).

Dawn ( 2012a ).

Nizami ( 2012 ).

Suo Motu Action Regarding Allegation of Business Deal between Malik Riaz Hussain and Dr. Arslan Iftikhar Attempting to Influence the Judicial Process , para 6.

Dawn ( 2011b ).

Dawn ( 2011c ).

Dawn ( 2012d ).

United Nations General Assembly ( 2013 ), pp. 14–15.

Dawn ( 2012b ).

National Reconciliation Ordinance (2007).

Discussed in Muhammad Azhar Siddique v Federation of Pakistan , PLD 2012 SC 774, pp. 794–795.

Ibid , p. 795.

Quoted ibid , p. 798.

Art. 63(2).

Muhammad Azhar Siddique v Federation of Pakistan , PLD 2012 SC 774.

Ibid , p. 807.

Ibid , p. 811.

Ibid , p. 817.

Walsh ( 2012 ).

Baz Muhammad Kakar v Federation of Pakistan , PLD 2012 SC 866.

Ibid , p. 887.

Khan (Revokes) ( 2015a ).

CMA No 592-K/13 in SMC No 16 of 2011, etc. , para 3.

Ibid , paras 8, 10.

Dawn ( 2012c ).

The News ( 2014 ).

Constitutional Petition No 9 of 2014 .

Ibid , para 2.

Constitution (Twenty-First Amendment) Act, 2015, 1.

Shapiro ( 1986 ), p. 32.

Reference No 1 of 2012 , PLD 2013 SC 279.

Ibid , para 32.

Sh. Riaz-Ul-Haq v Federation of Pakistan , PLD 2013 SC 501.

Ibid , para 42.

Omer ( 2016 ).

Dossani Travels Pvt Ltd v Messrs Travels Shop Pvt Ltd , PLD 2014 SC 1.

Ibid , para 26.

Ibid , para 45.

Objectives Resolution (1949), Annex to the Constitution of the Islamic Republic of Pakistan.

Ibid , p. 1180.

See also Asma Jilani v Government of the Punjab, PLD 1972 SC 139 (no privative clause could prevent the Supreme Court from deciding a legal controversy argued before it); The State v Zia-ur-Rehman, PLD 1973 SC 49 (Supreme Court holds the power to interpret and apply any provision of the Constitution including jurisdiction-limiting terms); Begum Nusrat Bhutto v Chief of Army Staff and Federation of Pakistan, PLD 1977 SC 657 (Supreme Court held the jurisdiction to adjudicate upon the legal validity of government acts notwithstanding privative clauses of the new legal order); Zafar Ali Shah v General Pervez Musharraf, Chief Executive of Pakistan, PLD 2000 SC 869 (Supreme Court retained its review powers despite a privative clause); Constitutional Petition No 21 of 2007 (constitutional privative clause could not immunise acts done in bad faith or without legal jurisdiction).

See e.g., Supreme Court Bar Association v Federation of Pakistan, PLD 2002 SC 939 and Sindh High Court Bar v Federation of Pakistan, PLD 2009 SC 789 (short order), PLD 2009 SC 879 (full reasons) respectively.

See, e.g., Siddiqi ( 2015 ), where the author writes that “the challenge for any court remains a balancing act of being powerful but accountable”.

Constitutional Petition No 21 of 2007 .

See Dawn ( 2011d ).

Haider ( 2015 ).

For an outline of factors that can reduce or maintain judicial independence in dominant party systems see Tushnet ( 2015 ).

Walsh ( 2013 ).

Supreme Court of Pakistan ( 2014a ).

Federation of Pakistan v Moulvi Tamizuddin Khan , PLD 1955 FC 240.

Although this approach has been criticised, particularly in the context of ruling on the legal validity of military intervention: see, e.g. , Mahmud ( 1993 ) and Mahmud ( 1994 ).

Dawn ( 2013 ).

Democracy Reporting International ( 2011 ), p. 2.

Aqil Shah writes that “military organizational choices are more decisively shaped by the extent to which the military believes in the legitimacy of democratic institutions, including the constitution”: Shah ( 2014 ), p. 258.

Dawn ( 2012e ).

Siddiqi ( 2015 ). See also an analysis of the Supreme Court following the Lawyers’ Movement in Siddique ( 2015 ).

United Nations General Assembly ( 2013 ).

Sindh High Court Bar v Federation of Pakistan , PLD 2009 SC 789, pp. 799–800.

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Neudorf, L. (2017). Judicial Independence in Pakistan. In: The Dynamics of Judicial Independence. Springer, Cham. https://doi.org/10.1007/978-3-319-49884-3_3

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The current judicial system of Pakistan roots back to the medieval period and even before. The judicial system that we practice today has advanced over a long period of time, crossing roughly over a whole era. The system has passed through several epochs, covering the Hindu era, Muslim period including the Mughal Empire, British colonial period and post-independence chapter. Notwithstanding the successive changes i.e. one rule/dynasty substituted by the other, which naturally resulted in the socio-economic and political transformation of the Indian society, the judicial system generally maintained a steady growth and gradual advance towards consolidation and improvement/refinement, without indeed, having to undergo any major disruption or breakdown . During this process of progress and growth, the judicial system did receive encouragements and inspirations from foreign doctrines/notions and homegrown norms/practices, both in terms of organizing courts\’ structure, hierarchy, jurisdiction and adopting trial procedures/practices. Consequently, the present judicial system is not a completely foreign transplant, as is commonly assumed, but has attained a native flavor and national color. And while the system may not fully suit the prodigy of our people or meet the local conditions, its continued application and practice has made it comprehensible to the common man. The very fact that increasing number of people are resorting to the courts for the resolution of their conflicts/disputes, indicates that the system enjoys a degree of legitimacy and acceptance . The thesis is anchored on the research questions: What is affecting the dispensation of justice on the protection of fundamental human rights in Pakistan? What are the causes of delays and backlogs? 1.2 Research Aims and Objectives “Justice delayed is justice denied”. No society can exist without justice. And justice is conveyed to the people by a strong, feasible judiciary. Judiciary, being one of the significant structures of the state, plays important role in the solidity of society, as it provides quick respite to the public. But when justice is delayed, the letdown of judiciary starts. As a consequence, society drops into disorder. In case of Pakistan, this also holds true. Judiciary cannot deliver justice expeditiously to the people . The purpose of this thesis is to focus on the delay and backlogs in the judicial system of Pakistan, which results in the deferrals of fundamental human rights. Also what causes the delays, despite of various law commissions/committees constituted by the government in order to develop ways and means to meet the challenge of delayed justice? The topic “Challenge of Delayed Justice” is not a new one but has endured a subject of discussion and negotiation for well-known Jurists, Scholars and various Law Commissions/Committees established by the Government in order to change ways and means to meet the challenge of delayed justice . Though, the anticipated results could not be accomplished. Since 1956, consecutive governments have come up with a large number of Commissions and Committees on judicial reforms, the details of which are as follows :- • Commission on Marriage and Family Laws, 1956; • Law Restructuring Commission, 1958; • Law Reform Commission, 1967; • High Powered Law Reform Committee, 1974; • Law Committee for Recommending Measures for Speedy Discarding of Civil Litigation, 1978; • Secretaries’ Committee set up by the President to Examine the Recommendations of the Law Committee set up for Recommending Measures for Speedy Disposal of Civil Litigation, 1979; • Committee to Formulate Concrete Proposals for Simplifying the Present Legal Procedure In 1981, the government set up a perpetual Pakistan Law Commission (PLC). The Pakistan Law Commission has been issuing judicial figures and the Pakistan Law Digest (PLD), but it has not been very definite in shifting the nature of understanding of justice. Some of the commendations of these commissions relating to the Family Laws Decree, the formation of the Federal Judicial Academy, the Pakistan Law Commission and parting of the executive from the judiciary have been applied after a substantial delay. Substantive issues about day-to-day dispensation of justice, such as those concerning court facilities, structures, salaries of the judges, changes in procedure serving, making of witnesses, developments in examination and trial of criminal cases, implementation of rules and codes to cut down on delay and protracted inaction and prison improvements have not been implemented despite their repeated enunciation in reports . Members of civil society have also come up with thoughts for judicial reform. One such idea was to restore the judiciary through developments in inducements, organizations, infrastructure and information . The examination points out that the government’s political will to modification needs to be absorbed in a manner that will lead to incentive of judicial officials through better incentives and employing a Federal Public Service Commission, better internal and external answerability and checking by introducing measures such as the experiment by jury system and selection of a parliamentary protection of citizen’s rights, changing infrastructural limits such as delivery of professional court clerks, calculation facilities, law interns, libraries and the easing of a better quality of decision-making through proper lawful instruction and training for judges which would require enhancements in law colleges’ prospectuses . 1.3 Civil and Criminal Justice in Pakistan There is no doubt that delay in justice is not only a dare but stances a thoughtful hazard to the civil and criminal justice system in Pakistan. In spite of the fact that delay is a worldwide occurrence but in Pakistan, the place has become startling. The Pakistan Law Commission has taken knowledge of the subject and detected that “the civil and criminal justice system in Pakistan is challenged today with stern predicaments of irregular postponements . Delay in lawsuit of civil and criminal cases has become lingering and familiar. The phenomenon is not limited to Pakistan; it is rather old and universal. It is intrinsic in every judicial system which accurately pickets against any injustice being done to an individual, in a civil argument or a criminal trial. A dominant code of the criminal justice system is that a suspect is chastised only after his fault is evidenced beyond rational uncertainty. Similarly, justice stresses, that in a trial of a civil case, the argument must be definite and firmly in accordance with law and on the values of equity, justice and fair trial . Such universally documented and time-tested principles are in accord with the commands of Islam as the Holy Quran orders that Muslims must avoid unfairness, coercion, and suppression” . In Pakistan, one stern disadvantage of the management of justice is, delay. Delays always befall in the removal of civil and criminal cases. It is usual for an ordinary civil suit to dawdle on for as long as two decades, and on the conclusion of the trial, possibly additional half a decade passes by in the implementation of the verdict. In criminal cases also, the situation is quite gloomy. Rare delays occur in the discarding of cases by the courts . An example of uncommon delays is established by the fact that, conferring to a rough number, presently more than two-thirds of the jail prisoners includes of under-trial convicts. Such phenomenon corrodes the trust of the people and their sureness in the management of justice. Delays in the settlement of civil disputes, further prompt hindrance to the litigant community, also obstruct the socio-economic development of the society. It aids as a deterrent to foreign investment in our economy and disturbs our trade relations with foreign governments/multi-national companies . UN guideline for Prosecution and Prosecutors Qualifications, selection and training 1. “Persons selected as prosecutors shall be individuals of integrity and ability, with appropriate training and qualifications”. 2. States shall ensure that: (a) “Selection criteria for prosecutors embody safeguards against appointments based on partiality or prejudice, excluding any discrimination against a person on the grounds of race, colour, sex, language, religion, political or other opinion, national, social or ethnic origin, property, birth, economic or other status, except that it shall not be considered discriminatory to require a candidate for prosecutorial office to be a national of the country concerned”; (b) “Prosecutors have appropriate education and training and should be made aware of the ideals and ethical duties of their office, of the constitutional and statutory protections for the rights of the suspect and the victim, and of human rights and fundamental freedoms recognized by national and international law” . Status and conditions of service Prosecutors, as vital agents of the management of justice, shall at all times uphold the honour and dignity of their profession. States shall safeguard that prosecutors are able to do their professional functions without pressure, interference, annoyance, inappropriate intrusion or baseless exposure to civil, penal or other liability. Prosecutors and their families shall be substantially protected by the authorities when their personal safety is endangered as a result of the discharge of prosecutorial functions. Rational conditions of service of prosecutors, satisfactory compensation and, where applicable, tenure, pension and age of retirement shall be set out by law or published rules or regulations. Promotion of prosecutors, wherever such a system exists, shall be based on objective factors, in particular professional qualifications, ability, integrity and experience, and decided upon in accordance with fair and impartial procedures . 1.4 Cause of Delays and Backlogs The reasons of backlog and delays are varied and thoughtful, rising due to issues both inside and outside courts, and legal/procedural gaps/lacunae. Justice delayed is, certainly, justice denied. Therefore, it has always been the main distress of civilized societies to speak the issue of delayed justice with an understanding to find ways and means of eliminating defect/lacks in the management of justice. It would be incorrect to accept that the delinquent of backlog/delays has been totally ignored in the past . It has been acknowledged by the government from time to time. Numerous Law Reform Commissions and Committees were established with an opinion to inspect/analyze the reasons of delay as well as to propose suitable actions for improvement. Such Commissions/Committees approved out a thorough inspection of the procedural laws and rules and recommended suitable actions for improvement thereof. Some such commendations were acknowledged by the Government and applied through amendments in laws/rules. The Honorable Supreme Court and High Courts have always been studying their particular rules of procedure so as to safeguard quick and reasonable disposal of civil and criminal cases. From time to time, the High Courts have issued managerial directions to the subservient courts for prompt disposal of cases. The reform of procedural law, though, has been a continuous and interminable procedure. Laws need to be studied and transformed in keeping with the shifting times so as to manage with the developing certainties. The speedy disposal of cases is certainly a creditable objective. Though, it is not an end in itself; it is only a means to an end. That end being the facility of quick and reasonable justice. It is undeniably not delay per se which is offensive but an irrational and indefensible delay which needs to be checked. The necessities of justice demand that adequate time and passable chances should be made accessible to the complainant parties and defendant persons to state their cases and put across their defence before the court of law. In the process delays may happen, but it would be overlooked if it is in the concern of a just and fair disposal of the case. On the contrary, the propensity to hurry disposal of cases must be checked if it is likely to result in an unfair, partial or random order or result . The query of delayed justice has been inspected by numerous Commissions and Committees and references were made at different points of time but no fundamental change was suggested in the current judicial system. These endorsements can be abridged as follows:- i) Suitable alteration in the applicable laws. ii) Upsurge in the number of Judicial Officers. iii) Supplies of acceptable number of court-rooms and proper lodging to Judicial Officers. iv) Upgrading into the working of examination and trial agencies. v) Training services to Judicial Officers. vi) Development in Procedure of serving Agency. vii) Improvement in the retirement age of Judges. viii) Proposal of Challan in time, the examination branch of the Police should be reinforced, the number of Forensic Science Laboratories be amplified and the Court should take thoughtful notice of carelessness or excessive delay/default in the time of suggestion of Challan. ix) Recurrent suspension of cases should be evaded. x) Junction of the civil and criminal purposes at the level of District and Sessions Judges. xi) Systematic preparations of managements and control by the High Court over the working of secondary courts. The cases of exploitation, disorganization and in proficiency must be taken notice of and suitable punishments conferred . Delays in the dispensation of justice have become unqualifiedly bad. This system of uneven justice is not new and certainly not limited to FATA alone. In Punjab, a punchayat authorized the gang rape of a woman as a penalty for a crime supposedly committed by her brother while in Sui a female doctor who stated being raped was herself professed a Kari by her in-laws and henceforth accountable to be killed . Such oppressive and brutal systems of decree are found most commonly in the rustic vicinity where people often need the defensive arm of the law and pledge of justice, both of which are non-existent. A great level of illiteracy, a retrograde and medieval approach and the occurrence of misogynistic views among a large section of the people further multiply the problem. Also if education and applying respect for the law, the government has to safeguard the justice system that spreads rural zones so that those who live there are not left at the pity of panchayats, jirgas or ‘peace committees’. Also, as an alternative of substitute as an assistant in such transgressions, it would be better if official authorities depress all form of random and swift justice anywhere in the country . Although deliberating the question of delayed justice the essential question rises qua disintegration of the police system in place and its total incapability to retort to crimes connecting issues such as tribal and feudal pressures and domination of the informally and economically feebler sections of society, which include women. (Yes, just to give few examples of rural justice system) A woman exposed by a tribal court to gang-rape or a couple murdered as karo-kari or a plow compulsorily displaced from his land by an influential owner or a government agency have the chances loaded against them from the start. The patwari-police-feudal lords’ alliance remains to be a crippling story of rural life. In many cases, it may be difficult for a victim to risk out of his or her house to lodge a report with the police. Where access is conceivable, the victim comes up against the wall of police triviality and venality. The force has been so tarnished and daunted by continuous burden from the state mechanism, from governmentally important people and from local tribal groups to evade the law that it has mainly forgotten its accountability to the people . It is ill-fated that the magistracy and the lower judiciary are vulnerable to the same weights. It is worth remembering that it was a suo motu Supreme Court notice that caused in the registering of a report in the Mukhtaran Mai case. In this background, how the law is to be understood in a social setting boons a major predicament. Should a Judge strictly follow to the opinions of legal procedures, as he is predictable to do, or look at the whole situations surrounding an event? This is a recurrent quandary that has confronted the judiciary in every country down the ages. It has been informal to resolve in countries, where the rule of law, constitutional procedures and respect for democracy has been resolutely established; also where feudalism and the feudal attitude have been laid to rest. Regrettably, in our country, even the government is subjugated by feudal rudiments. There can be little hope of social justice unless the entire system is democratized. The state itself has to become kinder and less tyrannical. Justice, like any other purpose of state, cannot function in a void. Temporarily, the people will remain to look up to the judiciary to present an element of social justice in the system, and to act as a force for reorganization and progress . 1.5 Insufficient Number of Judges Another reason backing the delayed justice is that adequate numbers of Judges do not exist at numerous levels to manage with the uncountable number of cases before the Courts. This needs to be earnestly tackled. For years the subject has been preserved as only a talking point with no thoughtful steps taken to address the problem .Though, it must not be elapsed that although this may be partially precise neither is the condition ready for it, nor can we find the appropriate Judges to harvest the wanted outcomes. You do not hire just a Judge but form a Court and it is neither a low-cost exercise nor so simple to do. A Court to work competently needs well-organized and knowledgeable staff and also syndicates a number of other issues, fading which it will prove counterproductive. Regrettably, the idea of adding of more Judges to the present strength has been highlighted so much and so often by so many well-known people that now, it is being painstaking as the only cure of the disorder regardless of the hard reasons involved. If disorganization is added to incompetence, it will not bring efficiency: it will instead simply increase it. It may not be out of place to comment here that the backlog is not much pretentious but exploitation has amplified respectively, or much more, and the excellence and efficiency have decreased similarly . Past is full with examples of cases that have either never been decided or where the government has miscarried to implement the court’s choices. These aspects have all added to the public’s poor insight of the system and also clarify why so many turn to jirgas and panchayats to resolve disputes, notwithstanding bans on these establishments . The government has to work in partnership with Judges and lawyers to reinforce the judiciary so that it is seen as a self-governing body that brings justice promptly. The ADB sponsored “Access to Justice” program, which began in 1999, and was exposed as a technique to safeguard speedy justice, does not seem to have met with much achievement. It has been problematic to determine what, if any, of its suggestions were put in place and what were the results of those applied. If applied in letter and spirit, the program could certainly make the release of justice speedy . The wanted outcomes cannot be attained without making radical changes and improvements in the lawmaking, judicial and police departments to make the dispensation of justice swift. This is the only way which can reinstate the sureness of people in the judicial system which confidence has been corroding over the years for a number of reasons . A reasonable, easily available and well-organized judicial system will dishearten many from resorting to the similar justice system, predominant particularly in the rural area in the form of Jirga or Panchayat, which in many cases have been instruments of failure of justice. The new Police Act also needs upgrading and the imprint that everything is well at the gross root level is not right. Also that, high payment, improved working and living settings for the police and the lower judiciary needs to be applied. The physical look and feel of the police stations and courts also need to be enhanced. These are the parts which must be dealt with on an urgency basis if speedy and low-cost justice is to be made accessible to the people. The judicial reform program must be a continuing exercise across the country and economic possessions should not be a deterrent in this respect. The race for money attached with the easy probabilities of getting provisional orders from the Courts on the basis of falsification of facts and false insistences and the known delay in disposal of cases, has desirous a substantial share of the public to take up lawsuit as an occupation and advantage from the rights and properties of others. The outcome is that the number of cases is piling up every year, totaling to the preceding intolerable delay in their disposal. The current backlog of the cases and the unceasing adding to it is thus a straight result of not honest trial but of false and fake lawsuit. The backing for such lawsuit is the delay in disposal of cases. The procedure is therefore; not only grudging the honest distressed persons from relishing their properties or getting their cases disposed of prompt but is burrowing the ethical energy of the people . In other words, the predominant condition is not only inspiring but increasing what Islam wants to eliminate. Islam asserts on justice. The oddest facet of this condition is that there is in this country, not even a single person who would openly document this sad state of affairs to go on but still it is prospering. In any event, the important question is how to get rid of it and present swift and pure justice? It is certainly, a tremendously odd and complex problem but, as noted above, the failure for any reason to contend with the problem and to overwhelm it, is providing additional attractions for more dishonest people to arrive the field and reap attractive produces. One of the preparations being very deafeningly recommended now all around, mainly, by the members of judiciary and the legal profession, is to upsurge the number of Judges . 1.6 Criminal law Drawbacks Our criminal laws have the subsequent drawbacks due to which the anticipated admiration for law and swift dispensation of justice cannot be attained:- (i) Absenteeism of politico-religious permission of the punitive, local and special laws as well as nonexistence of their mass understanding by people; (ii) “Justice delayed is justice denied” is a basic principle of Islamic jurisprudence. It is hitherto to be understood in Pakistan. Faster, inexpensive, general and better-administered justice is the demand of the people of Pakistan; (iii) Deficiency of specificity of multi-dimensional laws conferring to our local needs on balanced lines by impartial and similar supplies of many laws functioned by parallel justice opportunities also confuses people; (iv) Non-adaptation of much wanted amalgamation and interpretation of laws for prevalent understanding and no availability of criminal codes in legal Urdu is another obstacle; (v) Unreasonable penal authorizations as in contradiction of set patterns of Islamic penology also puzzle people . The criminal justice system present in Pakistan was relocated by the British during their colonial rule in the last century and a half which is now the chief reason of abandonment in compensation of public complaints . There is a dire necessity of development of the lot of our judiciary to make it more self-governing with better service circumstances to deliver justice to the masses rendering to the universal values of inexpensive and quick settlement of victim’s complaints. The trial wing also desires instant strengthening after its parting from the Police with much more wired staff, better controlled organization of tasks, proper offices and housing-cum-transport facilities. The public based justice, which has a antiquity of thousands of years of our better being in this sub-continent, needs reconsidering and the system of conciliation courts needs strengthening. The swift clearance of cases with conviction of fair justice, suitable punishments to real offenders and public reaction for perfect social defence should be our nationwide precedence to build-up a crimeless Islamic state in Pakistan .  

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THE INDEPENDENCE OF JUDICIARY IN PAKISTAN

Analysis of Constitutional Provisions with special reference to Impacts of Eighteenth and Nineteenth Constitutional Amendments on the Independence of Judiciary in Pakistan

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Judiciary is considered an important pillar of every political system. It always tried to ensure the rule of law and guarantees civil liberties and fundamental rights to the citizens. To perform these functions effectively, independence of judiciary must be ensured. Unfortunately, in Pakistan judiciary faced severe hurdles in its smooth functioning due to legal framework orders and provisional constitutional orders issued from time to time by military rulers. Resultantly independence of judiciary suffered severely. This paper is an attempt to assess the level of judicial independence in political system of Pakistan from 1947 to 1999. Historical and analytical approaches of research with secondary sources of data have been used to find the results.

Paradoxes of Judicial Independence: Issues and Challenges of Constitutionalism in Pakistan

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Pakistan has oscillated between weak civilian rules and military regimes throughout its history. Military co-option with the judiciary, alongside few exceptions commenced an era of dissolutions in 1988. This led to develop an institutional imbalance which undermined the representative institutions by upholding the presidential orders to dismiss federal and provincial assemblies in Pakistan. The judiciary in Pakistan largely remained a reactionary institution as it endeavored for the self-preservation rather than upholding the constitutionalism and enforcing the rule of law. Judiciary"s political assertiveness during the decade of 1990s by addressing the political questions led to decline of its impartial character. This research expounds that judiciary"s informal support for military increased the federal challenges of Pakistan and enhanced the authoritarian features of the state. This paper also explicates that by validating the dismissals of the representative institutions and authorizing the military regimes to amend the constitution, Judiciary compromised its judicial independence, which is one of the salient features of Constitution of 1973. Keeping in view the nature of case study and employing qualitative approach of research, this paper largely addresses the key question that how judicial Independence is relevant to the issues of federalism and democracy in Pakistan.

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The provisions relating to the independence of the judiciary in the Islamic Republic of Pakistan and Malaysia are deficient and require reforms for securing the independence of the judiciary fully and more meaningfully. The purpose is to identify lacunas in the Constitutions of Pakistan and Malaysia relating to the doctrine of the independence of the judiciary and press for reforms. Comparative analyses of Malaysia and Pakistani constitutions have been made to press for reforms. Findings mandate revision of the Constitutions of Malaysia and Pakistan in the interest of independence of the judiciary and impartial decision-making. Results are very important in relation to proposing a solution for judicial discipline, quality of judgments, and justice according to law. Such conclusions drawn are the first of their kind after considering the constitution of Pakistan and Malaysia cumulatively.

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Independence of judiciary is a hallmark of a civilized society and salient feature of the modern state-craft. Independent and impartial judiciary is indispensible for endurance of a federal state as it ensures strict adherence to the constitution by all state organs and central and provincial governments. Only an independent and impartial judiciary can: uphold the constitution; safeguard the powers of provinces against encroachment by central government; defend the fundamental rights of citizens, and; keep check on exercise of powers by other state institutions mainly the executive. The independence of judiciary in a multi-ethnic and multi-cultural federal state such as Pakistan is imperative for its endurance, besides interprovincial harmony and good centre-province relations. Despotic governments cannot tolerate the independent and impartial judiciary. In order to advance their personal goals and undemocratic agenda, military rulers in Pakistan have generally targeted the superior judiciary by depriving it of its independence, self-esteem, integrity, and impartiality. In this context, the paper examines as how the military regime under Pervaiz Musharraf assaulted on the independence of the superior judiciary and undermined the supremacy of, and tempered with, the constitution of Pakistan.

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This work provides a twofold nature in relation to the law of Pakistan: firstly, constitutionalism being a broad public law concept applies to an analysis of the ongoing development and gradual maturing of this phenomenon in Pakistan. This endeavor helps place the thesis into a rich field of legal and law related literature that examines the trajectories of post-colonial countries in terms of their constitutional struggle and related developments. It provides a more descriptive framework that is useful in its own right as an orderly exposition of largely existing knowledge, ideally with updates on recent significant developments that major scholarly contributions from the earlier times did not yet included. Secondly, this thesis examines the dilemma of judicial activism, which is also referred to as public interest litigation. It endeavors to assess the extent to which judiciary of Pakistan may act as an autonomous entity that can rightfully set itself up as being somehow superior t...

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INDEPENDENCE OF JUDICIARY IN PAKISTAN

• August 15, 2022

Introduction

Judicial independence the idea is that the judiciary should be independent of other branches of government. That is, the courts should not be bound by undue influence from other branches of government or private interests. Judicial independence is important for the idea of separation of powers. However many countries deal with the idea of judicial independence in various ways, including judicial selection, or the selection of judges. One way to promote judicial independence is to give judges a lifetime or long term, which frees them from deciding cases and making decisions under the rule of law and judicial discretion, even if these decisions are politically unpopular or against powerful interests. This concept can be traced back to 18th century England furthermore in some countries, the judiciary's ability to examine the legislature is enhanced by the power of judicial review. For example, when some judiciary finds that a branch of government is refusing to fulfill a constitutional obligation or declaring laws passed by the legislature unconstitutional, this power can be used. For example, by ordering certain actions.

Independence of judiciary in Pakistan

Judicial independence is an essential feature of constitutional democracy. Pakistan's judiciary has been struggling for independence from the administration since 1947. Both civilian and military governments have sought to subordinate the judiciary. First, it is impartial, meaning that court decisions are not affected by the judge's personal case. Second, court decisions, once presented, and are respected, especially by the executive. And third, the judiciary is free from interference, that is, the parties are interested in a case or its outcome through others. There is also consensus among scholars on some of the factors that ensure the existence of judicial independence, including the process of impartial appointment of judges, such as formal, legal, and constitutional reservations, their removal through impeachment, their tenure. Security (like America in life). , Rigorous qualifications or experience, financial autonomy, and a critical relationship of the judiciary with other political and legal forces in the country. In Pakistan, neither the judiciary as an institution nor an individual judge is independent. The formation of different benches for different cases in the high courts and the ratio of dissent are raw examples. Jurists and scholars also differentiate between judicial independence and judicial activity. The independence of the judiciary is a feature of liberal democracies. On the other hand, from the appointment and removal of judges to the decision-making process, our judicial process is based on land principles. And in particular, the absolute power of the Chief Justice to approve cases to various benches. Another example of the arbitrary nature of the judicial process is the wave of SO moto power. The "rule of four" applies to the US Supreme Court for the approval of a certificate, meaning that four out of nine judges decide by vote whether they want to hear a case or not. Some pliant judges have also undermined the independence of the judiciary, endorsing unconstitutional changes of government, such as General Iskander Mirza in 1958 (Doso's case), General Zia-ul-Haq in 1977 (Nusrat Bhutto case), and Musharraf (Zafar Ali Shah case) through General Pervez in 1999. The shadow of this conflicting constitutional history is huge in our judiciary.

Judiciary in Pakistan in the context of rule of law and separation of power

Furthermore the role of the judiciary in Pakistan in the context of rule of law and separation of power we can say that the judiciary is not independent. In Pakistan the judiciary is suppressed by the executive and military establishment. The role of the judiciary has remained in shambles. Firstly, the judiciary was used as tools from the bureaucratic establishment after the regiment of Ghulam Muhammad doors open for military intervention retrospectively, if we start from Molvi Tamizuddin case vs state of Pakistan assembly was dissolved at the peak time of enactment of our state’s own constitution because the powers of the president were curtailed in to be a constitution. When it was appealed in Sindh high-court, Sindh high court resurrected /re-established the house remarking that now we do not need the slave constitution (Indian act1935) but our own. When it was appealed in the Supreme Court. Owing to a writ petition needs consent from the president it legitimized to dissolve the house. It is explicit that bureaucracy was used as a tool till 1954 after its judiciary was being used as a tool of the security establishment to mould their own interests & extract maximum resources from the land. Pakistan's history is full of such cases where it could be concluded that the ratio decided of such cases is already manipulated & scripted behind the curtain.

If one bent upon to bring real democracy in the state, he is being punished with unethical & illegitimate punishment. Zulfiqar Ali Bhutto for abetment of murder was a landmark decision as no one was sentenced to death before it not even after it. At present, the judiciary is being used as a tool to repress dissent voices and & suppress masses who call for self-determination. It is being done in the name of accountability. Although there is not a single country which considers its citizens guilty even before conviction of a crime. Such institutions like NAB are prevailing in our state. Justice Qazi Faez Isa case is witnessed by the nation as a whole. Who called for the army to stop intervening in political issues & all of sudden corruption & money beyond means charges were implied on him whose presidential reference has been declared null & void although FBR investigation is yet to be finalized. Moreover, recently Judge Arshad Malik was relegated owing to verdicts on dictation of some undeclared powerful sources which made Nawaz Sharif disqualified. Rule of law becomes a frightening question. When the military is being adjudicated in military courts even if they do any misconduct with civilians. Moreover, to rub salts to wounds, NAB gives absolute immunity to military & judges; they are not accountable to it but all others as a whole are accountable. In a nutshell, all of these factors suggest that the Pakistan judiciary has never been independent. However, separation of power never existed in Pakistan in practice and nor has the check and balance system prevailed in the country. There is also a check on judiciary after the presidential reference judicial council is formed which is enacted in article 209 but is done when the issue got so much limelight or when the executive wants to check because of his own interest as we have an example of justice faez Isa.

Separation of Judiciary from Executive

Pursuant to Article 175 (3) of the Constitution,

" The judiciary will be gradually separated Within fourteen years from the executive Start day This is a constitutional mandate The inquiry has been conducted by the esteemed Supreme Court Pakistan in some examples, under which the following The results are as follows: The basic right to access justice It cannot be guaranteed unless there is a judiciary Free. Subordination to any court or tribunal and executive oversight for the decision of rights will block the free access to justice and denial will result in Free Access to Fundamental Right to Justice prescribed. Any deviation from the way the advice has been given by the Constitution for appointment to higher.

See, Government of Balochistan v Azizullah Memon & Others (PLD 1993 SC 341): “… Separation of judiciary is the cornerstone of the independence of judiciary and unless judiciary is independent, the fundamental right of access to justice cannot be guaranteed.”

See, Government of Sindh & Others v Sharaf Faridi & Others (PLD 1994 SC 105): “… the independence of judiciary means: (a) that every judge is free to decide matters before him in accordance with his assessment of facts and his understanding of the law without improper influences, inducements or pressures, direct or indirect, from any quarter or for any reason, and (b) that the judiciary is independent of the executive and legislature, and has jurisdiction, directly or by way of review, overall issues of judicial nature.”

Judicial review in Pakistan compare and contrast with USA

Now talking about the judicial review it is a relationship between executive and judiciary and when we are talking about relationships we remind of separation of powers. Judicial review is not directly intervening in executive affairs it is not breach of separation of powers. This overlap is not breach this is a check on executive like one branch check on another branch maintaining separation of power and curbing the arbitrariness of executive. Judicial review is procedural in nature. In Pakistan there are Clearly written about the judicial review in some articles now we can take the example of article 199 in this article supreme court have power to do a judicial review and other article is 184 in this article high court have power to do a judicial review if anybody do some unlawful act court have power for the judicial review. Judicial review in Pakistan is obtained from the doctrine of judicial review in England, which depends on the doctrine of ultra vires, signifying "beyond the power". Since the forces practiced by open office holders are limited by law, any demonstration past those limitations is ultra vires to the Constitution and can be questioned in court Furthermore in Pakistan constitution there is clearly written about the court have power to do a judicial review despite this our legislative or executive body don’t do a perfect work hence in US written constitution there are not written about the judicial review despite this the US of legislative or executive do a perfectly work. It means the US government is good as compared to Pakistan government. Also in the US constitution there are some articles Like I, II OR III in these articles the US constitution clearly defines so there is no chance of abuse of power. Judicial review upholds the rule of law because judicial review is all about questioning the executive that he has acted intra vires or ultra vires if he uses his arbitrary power for wrong purpose.

However talking about judicial review in Pakistan we can say that judiciary is not independent judiciary is used by executive and military establishment to extract maximum sources of the land. Judiciary is suppressed by executive and military establishment however this judicial review was established in Pakistan constitution of 1962, which was the presidential form of government and General Zia ul Haq made the constitution before that also Pakistan had constitution, which declared as the 1st constitution of Pakistan1956 it had been abrogated through dictatorship Governor General Zia ul Haq However no any charge against him in supreme court , and before that constituent assembly which now calls as the national Assembly had also dissolved 1954 and Moulvi tameezuddin brought sue file in High Court however, nothing did happen cause Pakistan had not constitution before 1956 so that’s why there was no proper procedure of articles through which judges could interpretation the law. In Pakistan As we talk about the law of Pakistan, it will be a complete reversal of it because where we know, there is no legal check here. While we also have a parliament and a government and also the courts, we are faced with the problem that we have not received any justice till date nor has any citizen of Pakistan got any facility that has been provided to them. Because no institution here prioritizes human rights, it is with great regret that the institution to which justice is sought is not independent. And that institution is the judiciary where I seek justice and there is full hope of justice, However, It should always be written in the history of Pakistan how one institution threatens another institution and how one sphere interferes in the work of another institution. This is one of the main reasons why there is so little hope for justice here, otherwise other countries have similar institutions, they also have a government, they also have a parliament and courts. Then how do other countries run their system with proper discipline. Such institutions and countries come into being when such ignorant people come and rule who do not know Here it seems pertinent to mention that the constitution of Pakistan, like Indian and American constitutions, does not confer the power of judicial review on the judiciary in express terms. The constitution does not state that a high court or the Supreme Court can strike down a law passed by parliament or a provincial assembly. What the constitution confers on the superior judiciary is the power to interpret the constitution. It is from this function of the judiciary that the power of judicial review follows. While interpreting some provisions of the constitution, the courts may find that a particular law is in conflict with those provisions. Since the constitution is the fundamental law of the land, any law which conflicts with it shall be void. The legislature has to amend or repeal it. ”Nevertheless in Pakistan there is no law about human rights hence in US same conditions like Pakistan there is no protection of fundamental rights in both countries. Now in recent times some people argue that in Pakistan judiciary is independent because if we take the example of Panama case in this case, the judiciary is totally independent because the judiciary gives judgment of article 62 and 63 judges argue that he is no more

Sadiq and Ameen in favor of this case Pakistani citizens enjoy their rights.

In my point of view Pakistan should not allow the executive branch to interfere in the tenure of judges' offices in the Superior Courts because such interference harms the independence of the judiciary because such interference threatens to erode public confidence in the judiciary Because such interference has a cold effect on the constitutional guarantee of access to the basic right of citizens to justice Pakistan should not allow the executive branch to interfere in the offices of judges in the high courts Because such interference harms the independence of the judiciary Because such interference threatens to erode public confidence in the judiciary Because such interference creates a cold seal on the constitutional guarantee of the fundamental right of citizens to justice.

Steps Taken to Ensure Independence of Judiciary

Separation of Judiciary from the Executive and Legislature:

In Pakistan, the judiciary is neither a branch of the executive nor a servant of the legislature. It has an independent identity under the constitution. He has complete autonomy in his work.

Appointment of Judges by the President:

The method of appointment of judges has been excellent. Judges of the Supreme Court and High Courts are appointed by the President. In appointing other judges to the Supreme Court, the President consults the Chief Justice of Pakistan. In the case of the appointment of the Chief Justice, the process of appointing the most senior judges to this higher post is carried out. In the case of lower courts, judges are recruited through competitive examinations.

High qualification:

The constitution sets out specific and high qualifications for judges. The person eligible for the judgeship should be Pakistani citizen, he should have at least five years of experience as a High Court judge or at least ten years of experience as a High Court lawyer or a respected jurist. Therefore, only highly qualified and experienced people are appointed as judges of the courts.

Supreme Court judges remain in office until they reach the age of 65. This age limit ensures a long term for judges.

Service protection:

Judges in Pakistan enjoy good security of services. No judge can be removed from office unless there is a very difficult process of impeachment.

Every Supreme Court judge receives a high salary. In addition, every judge is entitled to free housing, medical allowance and many other benefits. Judges' salaries and allowances cannot be reduced during the term of office, unless there is a financial emergency in the country.

Prohibition of practice after retirement:

In Pakistan, a Supreme Court judge is barred from practicing before a court or authority.

Power to punish contempt of court :

Courts in Pakistan are empowered to sentence all contempt of court cases. The Supreme

Court can punish any institution or individual found guilty of contempt of court.

Wide jurisdiction and judicial review power:

The judiciary in Pakistan has a wide scope. It acts as the guardian of the Constitution, the defender of the fundamental rights of the people and the mediator of disputes between the Union and the States. It has the power to determine the constitutional legitimacy of each law. If any law is found to be unconstitutional, it can be rejected. The Pakistan judiciary is in no way subordinate to the other two organs of government. Its decisions bind everyone. Such a powerful position helps the judiciary maintain its independence. Thus the Constitution of Pakistan includes all the features that are deemed necessary to safeguard the independence of the judiciary.

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Independence of Judiciary

According to World Justice Project (WJP) Rule of Law index for 2023 Pakistan ranked 130th across 142 countries. The WJP is an independent, multidisciplinary organization working to advance the rule of law worldwide. It is indeed a matter of shame and great embarrassment that the Islamic Republic of Pakistan which should rank number one in the world on the rule of law index lies so low on the ladder.

The question is that when the constitution stipulates independence of judiciary and there are no prescribed curbs on the judges to dispense justice then why the country languishes at almost the bottom of the rule of law index?

Before trying to find an answer to this question perhaps it would be appropriate to have a close look at the text of the oath prescribed in the constitution for the judges of the high courts and Supreme Court. The text reads 'I do solemnly swear that I will bear true faith and allegiance to Pakistan. That, as Chief Justice of Pakistan (or a Judge of the Supreme Court of Pakistan or Chief Justice or a Judge of the High Court for the Province or Provinces ) I will discharge my duties, and perform my functions, honestly to the best of my ability and faithfully in accordance with the Constitution of the Islamic Republic of Pakistan and the law: That I will abide by the code of conduct issued by the Supreme Judicial Council: That I will not allow my personal interest to influence my official conduct or my official decisions: That I will preserve, protect and defend the Constitution of the Islamic Republic of Pakistan: And that, in all circumstances, I will do right to all manner of people, according to law, without fear or favor, affection or ill-will. May Allah Almighty help and guide me (A'meen)'.

As is evident every judge in his oath pledges to protect the Constitution and dispense justice without fear or favour. If every judge acts according to his oath then there can be no injustice in the society. The prevalence of such a culture in the judiciary will surely act as a deterrent against interference in the judiciary. But the dilemma is that the situation has been quite contrary to it to earn our judiciary the lowest place on the rule of law index.

The answer to the question of why it is so has many dimensions. Corruption is the main reason in the lower judiciary and barring honourable exceptions the situation in the higher judiciary is also not very enviable. The other reason is that the successive governments both military and civilian have inducted judges of their own choice in the judiciary who were under obligation to serve the interests of their benefactors. Yet another reason has been the presence of weak and pliable judges in the judiciary who preferred their own perks and privileges over justice and gave decisions which have had profoundly adverse impact on the political landscape of the country.

Presently the Supreme Court is considering the question of interference in the judiciary by the agencies as alleged in the letter to the Supreme Judicial Council and Supreme Court by six judges of the IHC and ways and means to stop it. The Lahore High Court and Islamabad High courts have also submitted their recommendations in this regard after their full court deliberations. What will be the final outcome of the hearing and what remedy would be suggested cannot be suggested or conceived at the moment.

As they say commonsense really makes sense therefore I would like to look at the whole question from this perspective. We have seen that there are no curbs prescribed on the independence of judiciary in the constitution. If a judge does not act independently while adjudicating a case, takes pressure from any other organ of the state or agencies in exchange for personal benefits then it actually reflects on his personal character.

The judges of the high courts and Supreme Court have the power to initiate contempt proceedings against anybody trying to influence their decision or interfering in the judicial proceedings. They do not have to lodge complaints to the Supreme Judicial Council or the Supreme Court. The judge who is approached by any agency must have the heft to resist it and also take appropriate action against it.

The case of Justice Shaukat Siddiqui is a classic example of resistance to pressure. He showed the character to resist the pressure and unveil those behind it. Though he had to pay a heavy price for showing exemplary courage but in the end he was vindicated by the decision of the Supreme Court which not only quashed the decision of his dismissal by the Supreme Judicial Council but also declared him as a retired judge with all the post-retirement benefits.

The judges of the Islamabad High Court who have written the letter regarding interference of the agencies in regards to incidents that happened one year before have themselves shown weakness of their character in not taking action against those who were guilty of interference. If a judge cannot stand to pressure from any official quarter then he has no right to be a judge of the high courts or Supreme Court.

The Supreme Court has asked the government and the agencies to file response to the recommendations of the High Courts regarding elimination of interference and adjourned proceedings till 7th May. An observation was also made regarding the role of the parliament in making necessary legislation in this regard. In my view no matter how many laws are enacted to curb the phenomenon of interference it is not going to help much. It is a very complicated situation.

The biggest fault lies with the way the judges of the High Courts and Supreme Court are appointed or elevated. A way has to be found to stop political appointments in the judiciary to ensure that only people with impeccable and unblemished careers are made judges of the High Courts and then merit and seniority is strictly adhered to for the elevation of the high court judges to the Supreme Court. That will tackle the situation to a great extent. It would, however, require a dialogue between judiciary and the executive which is ultimately responsible for governing the country, to evolve that system. We need men of character to man the judiciary.

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The Last Thing This Supreme Court Could Do to Shock Us

There will be no more self-soothing after this..

For three long years, Supreme Court watchers mollified themselves (and others) with vague promises that when the rubber hit the road, even the ultraconservative Federalist Society justices of the Roberts court would put democracy before party whenever they were finally confronted with the legal effort to hold Donald Trump accountable for Jan. 6. There were promising signs: They had, after all, refused to wade into the Trumpian efforts to set aside the election results in 2020. They had, after all, hewed to a kind of sanity in batting away Trumpist claims about presidential records (with the lone exception of Clarence Thomas, too long marinated in the Ginni-scented Kool-Aid to be capable of surprising us, but he was just one vote). We promised ourselves that there would be cool heads and grand bargains and that even though the court might sometimes help Trump in small ways, it would privilege the country in the end. We kept thinking that at least for Justices Brett Kavanaugh and Neil Gorsuch and Chief Justice John Roberts , the voice of reasoned never-Trumpers might still penetrate the Fox News fog. We told ourselves that at least six justices, and maybe even seven, of the most MAGA-friendly court in history would still want to ensure that this November’s elections would not be the last in history. Political hacks they may be, but they were not lawless ones.

On Thursday, during oral arguments in Trump v. United States , the Republican-appointed justices shattered those illusions. This was the case we had been waiting for, and all was made clear—brutally so. These justices donned the attitude of cynical partisans, repeatedly lending legitimacy to the former president’s outrageous claims of immunity from criminal prosecution. To at least five of the conservatives, the real threat to democracy wasn’t Trump’s attempt to overturn the election—but the Justice Department’s efforts to prosecute him for the act. These justices fear that it is Trump’s prosecution for election subversion that will “destabilize” democracy, requiring them to read a brand-new principle of presidential immunity into a Constitution that guarantees nothing of the sort. They evinced virtually no concern for our ability to continue holding free and fair elections that culminate in a peaceful transfer of power. They instead offered endless solicitude for the former president who fought that transfer of power.

However the court disposes of Trump v. U.S. , the result will almost certainly be precisely what the former president craves: more delays, more hearings, more appeals—more of everything but justice . This was not a legitimate claim from the start, but a wild attempt by Trump’s attorneys to use his former role as chief executive of the United States to shield himself from the consequences of trying to turn the presidency into a dictatorship. After so much speculation that these reasonable, rational jurists would surely dispose of this ridiculous case quickly and easily, Thursday delivered a morass of bad-faith hand-wringing on the right about the apparently unbearable possibility that a president might no longer be allowed to wield his powers of office in pursuit of illegal ends. Just as bad, we heard a constant minimization of Jan. 6, for the second week in a row , as if the insurrection were ancient history, and history that has since been dramatically overblown, presumably for Democrats’ partisan aims.

We got an early taste of this minimization in Trump v. Anderson , the Colorado case about removing Trump from the ballot. The court didn’t have the stomach to discuss the violence at the Capitol in its sharply divided decision, which found for Trump ; indeed, the majority barely mentioned the events of Jan. 6 at all when rejecting Colorado’s effort to bar from the ballot an insurrectionist who tried to steal our democracy. But we let that one be, because we figured special counsel Jack Smith would ride to the rescue. Smith has indicted Trump on election subversion charges related to Jan. 6, and the biggest obstacle standing between the special counsel and a trial has been the former president’s outlandish claim that he has absolute immunity from criminal charges as a result of his having been president at the time. Specifically, Trump alleges that his crusade to overturn the election constituted “official acts” that are immune from criminal liability under a heretofore unknown constitutional principle that the chief executive is quite literally above the law.

The U.S. Court of Appeals for the District of Columbia Circuit held in February that the president does not have blanket or absolute immunity for all actions taken in office, including “official” acts performed under the guise of executing the law (for example, Trump’s attempt to weaponize the DOJ against election results under the pretense of investigating fraud). The D.C. Circuit’s emphatic, cross-ideological decision should have been summarily affirmed by SCOTUS within days. Instead, the justices set it for arguments two months down the road—a bad omen, to put it mildly . Even then, many court watchers held out hope that Thursday morning’s oral arguments were to be the moment for the nine justices of the Supreme Court to finally indicate their readiness to take on Trump, Trumpism, illiberalism, and slouching fascism.

It was not to be. Justice Samuel Alito best captured the spirit of arguments when he asked gravely “what is required for the functioning of a stable democratic society” (good start!), then answered his own question: total immunity for criminal presidents (oh, dear). Indeed, anything but immunity would, he suggested, encourage presidents to commit more crimes to stay in office: “Now, if an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?” Never mind that the president in question did not leave office peacefully and is not sitting quietly in retirement but is instead running for presidential office once again. No, if we want criminal presidents to leave office when they lose, we have to let them commit crimes scot-free. If ever a better articulation of the legal principle “Don’t make me hit you again” has been proffered at an oral argument, it’s hard to imagine it.

Justice Sonia Sotomayor spoke to this absurdity when she responded in what could only be heard as a cri de coeur: “Stable democratic society needs good faith of public officials,” she said. “That good faith assumes that they will follow the law.” The justice noted that despite all the protections in place, a democracy can sometimes “potentially fail.” She concluded: “In the end, if it fails completely, it’s because we destroyed our democracy on our own, isn’t it?”

But it was probably too late to make this plea, because by that point we had heard both Alito and Gorsuch opine that presidents must be protected at all costs from the whims of overzealous deep state prosecutors brandishing “vague” criminal statutes. We heard Kavanaugh opine mindlessly on the independent counsel statute and how mean it is to presidents, reading extensively from Justice Antonin Scalia’s dissent in a case arguing that independent counsels are unconstitutional. (Yes, Kavanaugh worked for Ken Starr , the independent counsel.) If you’re clocking a trend here, it’s gender. Just as was the case in Anderson , it’s the women justices doing the second-shift work here: both probing the thorny constitutional and criminal questions and signaling a refusal to tank democracy over abstractions and deflections. As was the case in the EMTALA arguments, it’s the women who understand what it looks like to cheat death.

Is the president, Sotomayor asked, immune from prosecution if he orders the military to assassinate a political rival? Yes, said John Sauer, who represented Trump—though it “depends on the circumstances.” Could the president, Justice Elena Kagan asked, order the military to stage a coup? Yes, Sauer said again, depending on the circumstances. To which Kagan tartly replied that Sauer’s insistence on specifying the “circumstances” boiled down to “Under my test, it’s an official act, but that sure sounds bad, doesn’t it?” (Cue polite laughter in the chamber.)

This shameless, maximalist approach should have drawn anger from the conservative justices—indignation, at least, that Sauer took them for such easy marks. But it turns out that he calibrated his terrible arguments just right. The cynicism on display was truly breathtaking: Alito winkingly implied to Michael Dreeben, representing Smith, that we all know that Justice Department lawyers are political hacks, right? Roberts mocked Dreeben for saying “There’s no reason to worry because the prosecutor will act in good faith.”

The conservative justices are so in love with their own voices and so convinced of their own rectitude that they monologued about how improper it was for Dreeben to keep talking about the facts of this case, as opposed to the “abstract” principles at play. “I’m talking about the future!” Kavanaugh declared at one point to Dreeben, pitching himself not as Trump’s human shield but as a principled defender of the treasured constitutional right of all presidents to do crime. (We’re sure whatever rule he cooks up will apply equally to Democratic presidents, right?) Kavanaugh eventually landed on the proposition that prosecutors may charge presidents only under criminal statutes that explicitly state they can be applied to the president. Which, as Sotomayor pointed out, would mean no charges everywhere, because just a tiny handful of statutes are stamped with the label “CAN BE APPLIED TO PRESIDENT.”

The words bold and fearless action were repeated on a loop today, as a kind of mantra of how effective presidents must be free to act quickly and decisively to save democracy from the many unanticipated threats it faces. And yet the court—which has been asked to take bold and fearless action to deter the person who called Georgia’s secretary of state to demand that he alter the vote count, and threatened to fire DOJ officials who would not help steal an election—is backing away from its own duty. The prospect of a criminal trial for a criminal president shocked and appalled five men: Thomas, Alito, Kavanaugh, and Gorsuch suggested that Smith’s entire prosecution is unconstitutional; meanwhile, Roberts sounded eager at times to handle the case just a hair more gracefully: by cutting out its heart by preventing the jury from hearing about “official acts” (which lie at the center of the alleged conspiracy). Justice Amy Coney Barrett was far more measured, teasing out a compromise with Dreeben that would compel the trial court to tell the jury it could not impose criminal liability for these “official” acts, only “private ones.” Remember, drawing that line would require months of hearings and appeals, pushing any trial into 2025 or beyond. The president who tried to steal the most recent election is running in the next one, which is happening in mere months.

The liberal justices tried their best to make the case that justice required denying Trump’s sweeping immunity claim, permitting the trial to move forward, and sorting out lingering constitutional issues afterward, as virtually all other criminal defendants must do. They got little traction. Everyone on that bench was well aware that the entire nation was listening to arguments; that the whole nation wants to understand whether Trump’s refusal to concede the 2020 election was an existential threat to democracy or a lark. Five justices sent the message, loud and clear, that they are far more worried about Trump’s prosecution at the hands of the deep-state DOJ than about his alleged crimes, which were barely mentioned. This trial will almost certainly face yet more delays. These delays might mean that its subject could win back the presidency in the meantime and render the trial moot. But the court has now signaled that nothing he did was all that serious and that the danger he may pose is not worth reining in. The real threats they see are the ones Trump himself shouts from the rooftops: witch hunts and partisan Biden prosecutors. These men have picked their team. The rest hardly matters.

Hope Hicks gets teary testifying at Trump’s hush money trial

After a week of tabloid-focused testimony, the former aide led the jury through the whirlwind of the 2016 campaign and directly to the Oval Office.

NEW YORK — Hope Hicks, a former top aide to Donald Trump , appeared to break down crying on the witness stand Friday at Trump’s criminal trial, where she described campaign and White House efforts to keep a lid on scandalous stories about his past sex life.

Her time on the stand marked a significant shift in the focus of trial testimony; after days of hearing about tabloid editors and secret deals to stifle or sell celebrity gossip, the jury was led through the whirlwind of the 2016 presidential campaign and directly to the Oval Office.

Prosecutors with the Manhattan district attorney’s office wanted Hicks to show the jury how worried the 2016 Trump campaign was about negative stories about him and women — a key element in Trump’s alleged motive in the hush money case.

Her testimony seemed to accomplish that limited goal, but overall her tenor was respectful and complimentary of Trump, the presumptive GOP nominee for president in the November election; far from an aide turning against her former boss, she came across as a still-loyal and reluctant participant in his prosecution.

Hicks has long been seen as one of Trump’s most loyal aides, following him from his business to the 2016 presidential campaign to the White House. After about two hours on the witness stand in a packed courtroom, she was overcome by emotion as Trump lawyer Emil Bove prepared to cross-examine her.

As Bove began, Hicks slowly turned her face away from Trump, who was sitting at the defense table, and toward the jury. She brought her hand to her nose and started to quietly cry.

“Miss Hicks, do you need a break?” asked New York Supreme Court Justice Juan Merchan .

“Yes,” she said through tears.

Trump hush money trial

With that, the jury was sent out of the courtroom while Hicks collected herself.

Trump had watched Hicks enter the courtroom but did not react much during her time on the stand; at some points he wrote notes and passed them to his lawyers, but mostly he sat impassively at the defense table, listening with his eyes mostly closed.

Hicks appeared nervous at the start of her testimony, but there was no confrontation or revelation that seemed to prompt her emotional moment. It appeared that the attention of the high-profile trial, and being a prosecution witness against her former boss, whom she described in positive terms, became overwhelming as the day wore on.

Hicks told the jury about conversations inside the White House in 2018, as aides dealt with the fallout from news stories about payments made to two women during the 2016 campaign to keep them from going public with allegations about sexual trysts with Trump.

Under questioning from prosecutor Matthew Colangelo, Hicks recounted speaking to Trump after an article appeared in 2018 about a payment to adult-film actress Stormy Daniels. That $130,000 payment was first made by Michael Cohen, then a lawyer for Trump, whom Trump later reimbursed. Those reimbursements, and their categorization as legal costs rather than campaign expenses, are the basis of the 34-count indictment filed against Trump by Manhattan District Attorney Alvin Bragg (D).

After that hush money payment was detailed by the Wall Street Journal, Hicks said, Trump told her that “Michael had paid this woman to protect him from a false allegation, and that Michael felt like it was his job to protect him and that’s what he was doing and he did it out of the kindness of his heart.” Soon after the story came out, Cohen publicly claimed to have made the payment with his own money.

Cohen completed a three-year prison term after pleading guilty to fraud and lying, and has become an outspoken Trump critic . He is expected to be a key witness in the case. Hicks on Friday became the latest of several trial witnesses who have said biting things about Cohen .

Asked if it sounded like Mr. Cohen to make a $130,000 payment “out of the kindness of his heart,” Hicks replied, “I’d say that would be out of character for Michael … I didn’t know Michael to be an especially charitable person or selfless person.”

She said he was “the kind of person who seeks credit.”

At another point, Hicks wryly mentioned that Cohen liked to refer to himself as a “fixer,” yet in her experience, he fixed things “only because he first broke it.”

For prosecutors, the main purpose of Hicks’s testimony seemed to be showing that Trump and his campaign were very concerned about allegations made against him by women.

When it came to the Daniels story, which surfaced publicly while he was in the White House, Hicks said Trump told her that “it was better to be dealing with it now, and it would have been bad to have that story come out before the election.”

As soon as Hicks said that, prosecutors ended their questioning.

Her testimony, while emotional at one moment, did not offer any major revelations or surprises, but it adds to prosecutors’ larger point that Trump was motivated to keep scandalous stories out of the public eye during the election.

But Hicks’s account also made clear that her former boss was concerned about the potential effect of the allegations on his family.

When the Journal published a story in early November 2016 about the National Enquirer buying the rights to a Playboy model’s tale of an affair with Trump — a purchase the tabloid made for the express purpose of keeping the allegation quiet — Hicks said the presidential candidate worried about Melania Trump’s reaction.

In her role as a campaign adviser, Hicks said, she wanted to “blow past it and keep going,” since the election was only days away.

She said Trump was “concerned about the story, he was concerned about how it would be viewed by his wife, and he wanted me to make sure that the newspapers weren’t delivered to their residence that morning.”

By that point, the campaign had already been rocked a month earlier, when The Washington Post revealed the existence of an “Access Hollywood” recording in which Trump bragged about grabbing women’s genitalia.

That story unleashed a political maelstrom, Hicks testified. Prosecutors wanted her testimony in part to show that, after the scandal, Trump and his campaign were desperate to prevent further damaging stories about him and women, and that gave the candidate and his staff a powerful motive to keep Daniels and any other potential accusers quiet.

Hicks said she was “a little stunned” when she was first asked for comment about the “Access Hollywood” tape, and wrote in an email that they should “deny, deny, deny.”

“I had a good sense that this was going to be a massive story and sort of dominate the news cycle for the next several days at least,” she said. “This was a crisis.”

At times in her testimony, Hicks flashed a sense of humor, noting that around the same time as that story, a hurricane hit the East Coast.

“I don’t think anybody remembers where or when that hurricane made landfall,” she said. “It was all Trump, all the time, for the next 36 hours.”

The 11th day of the trial — the first time a former U.S. president has faced criminal charges — began with the judge reassuring Trump that despite being found in contempt of court for repeated violations of his gag order, Trump still had an absolute right to testify in his defense if he wanted to do so later.

“It came to my attention that there may be some misunderstanding regarding the order,” Merchan said, referring to comments Trump made a day earlier in the courthouse hallway. Speaking to reporters, the former president had complained that the judge’s order — which bars him from talking about witnesses, or the families of the judge or the prosecutor — prevented him from testifying. It does not.

Merchan tried to clear up the issue by telling Trump: “You have an absolute right to testify at trial if that’s what you decide to do after consultation with your attorneys.” The gag order, he said, only applies to statements made outside the courtroom, whether in the hallway, in media interviews or on social media.

As Merchan spoke, Trump nodded in agreement.

Trump has flirted publicly with the idea of testifying in his defense, though lawyers usually advise defendants not to do so, because it gives prosecutors a chance to question the person under oath in front of the jury.

Trump has been found in contempt of court for nine statements that violated the judge’s gag order, and Merchan is considering four additional statements that may also be violations.

Later Friday, a court official said Trump has paid the $9,000 in fines he owed for those violations. The payment was made in two installments: one for $2,000 and another for $7,000.

Trump New York hush money case

Former president Donald Trump’s criminal hush money trial is underway in New York. Follow live updates from the trial .

Jury selection: A full jury of 12 jurors and six alternates has been seated. Here’s what we know about the jurors .

The case: The investigation involves a $130,000 payment made to Stormy Daniels, an adult-film actress , during the 2016 presidential campaign. It’s one of many ongoing investigations involving Trump . Here are some of the key people in the case .

The charges: Trump is charged with 34 felony counts of falsifying business records. Falsifying business records is a felony in New York when there is an “intent to defraud” that includes an intent to “commit another crime or to aid or conceal” another crime. He has pleaded not guilty . Here’s what to know about the charges — and any potential sentence .

Can Trump still run for president? The short answer, legal experts said, is yes. The U.S. Constitution does not forbid Trump, or anyone else, from serving as president if convicted of a felony.

• Trump defense suggests he was shakedown target, not hush money schemer May 2, 2024 Trump defense suggests he was shakedown target, not hush money schemer May 2, 2024
• Judge may be losing patience on gag order and other Trump trial takeaways May 2, 2024 Judge may be losing patience on gag order and other Trump trial takeaways May 2, 2024
• Hope Hicks witnessed nearly every Trump scandal. Now she must testify. May 3, 2024 Hope Hicks witnessed nearly every Trump scandal. Now she must testify. May 3, 2024

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Guest Essay

Trump’s Trial Can Right a Wrong From 50 Years Ago

By Kevin Boyle

Mr. Boyle is the author of “The Shattering: America in the 1960s.”

Of the four criminal cases that Donald Trump is facing, the one unfolding in Manhattan is generally considered the weakest. Its legal foundation is complex. Its key witness is a felon. Its details are the sort of stuff that the tabloids splash across their front pages.

Worst of all, it doesn’t speak to Mr. Trump’s actions as president, as the other cases do. But as the Supreme Court oral arguments on immunity last week made clear, it is likely to be the only one the country will see resolved before Election Day.

As a historian who has written about the wrenching events of the 1960s and early 1970s, I can’t help seeing Mr. Trump’s legal troubles through the lens of an earlier Republican president, Richard Nixon. He spent more than two years, from the summer of 1972 to the summer of ’74, trying to prevent investigators from uncovering the tangle of crimes that made up the Watergate affair. But unlike Mr. Trump, Mr. Nixon never faced criminal charges. For that, justice suffered, and the nation suffered, too.

So here we are, watching unfold in Justice Juan Merchan’s utilitarian courtroom the narrow, tawdry version of the trials the nation ought to have had this year and the trial the nation should have had 50 years ago.

Mr. Nixon won the presidency in 1968 promising to be tough on crime. And he was. From 1961 to 1968 the nation’s prison population fell by 15 percent. By the time Mr. Nixon left office in 1974, it was almost back to where it was in 1962 — the start of a spiral fueled by the furious politics of law and order that his administration had helped to unleash.

The punitive turn struck poorer people and communities of color with particular force, an outcome that a majority of Americans didn’t seem to mind. But when the Watergate investigation exposed Mr. Nixon’s own potential criminality, they thought that the law ought to apply to him, too. As the crisis reached its peak in the summer of 1974, that belief hardened: By almost two to one, Americans wanted the House of Representatives to impeach the president, the Senate to try him and prosecutors to secure his indictment, so that his case could move into open court.

None of that happened. In early July 1974, Mr. Nixon’s lawyer presented to the Supreme Court his client’s claim of presidential immunity. The justices took just two weeks to issue their ruling against the president’s position, by a vote of 8 to 0 .

In light of the Supreme Court’s conduct this year, it’s worth underlining that timing: The case was argued on July 8. The justices issued a decision on July 24.

Between July 27 and 30, the House Judiciary Committee approved articles of impeachment. Mr. Nixon resigned nine days later, with the articles pending. President Gerald Ford waited a month and then gave his predecessor “ a full, free and absolute pardon ” for the crimes he had yet to be charged with committing. And something started to shift for Americans.

In April 1974, the month the Watergate cover-up started to unravel, 71 percent of Americans had at least a fair amount of confidence in the legal system. In the weeks after Mr. Nixon’s pardon, the share of people who felt that way fell to 67 percent. A year later it was down to 64 percent. That growing sense of disillusionment can’t be explained purely by the failure to bring Mr. Nixon to trial. But a revealing set of long-forgotten surveys suggests that it played a part.

In 1971 the Roper Organization, then one of the nation’s leading pollsters, asked a randomly selected sample of adults to say which groups the courts treated too leniently. Respondents put “dope peddlers” at the top of the list, followed by “heroin users,” “marijuana users” and “revolutionists, anarchists, agitators” — almost precisely the people Mr. Nixon had promised to bring to justice by restoring law and order. Roper asked the same question two years after he was pardoned. “Dope peddlers” came in first again. “Government officials” was second.

Americans’ view of the Nixon pardon gradually softened, while their underlying distrust of the legal system solidified, a dynamic undoubtedly driven by the nation’s rapidly rising levels of economic inequality. When Roper revived its question in 1987, government officials still ranked right behind drug dealers as the group most likely to get special treatment in court. This time, “top business executives” finished fourth (tied with “marijuana users” and “frequent offenders”), barely below “heroin users.” There the public’s perception remained, as the wealth gap widened and the apparently endless war on crime locked up a greater and greater share of the nation’s poor.

By 2001, as indicated in a poll from Greenberg Quinlan Rosner Research/American Viewpoint, 62 percent of Americans had come to believe that there were two justice systems in the United States: one for the rich and powerful and another for everyone else. By 2019, in a similarly worded question from a Willow poll, that figure had reached 70 percent, just a point below the proportion of people who had confidence in the courts in the spring of 1974.

Since then, the cracks that run through the system have been torn wide open by the 2020 protests against police brutality and the fierce law-and-order response that the Trump administration mounted against them — combat-ready federal agents on the streets of Portland, Ore., tear gas in Lafayette Square in Washington. Add to that pile of tinder Mr. Trump’s manic subversion of the electoral process and the peaceful and effective transfer of power, which has led to three of the four criminal cases he’s facing.

Mr. Trump has met the charges against him with a blatant display of the privileges that wealth and power create. Over the past two years, he has spent about $76 million of other people’s money on legal fees, much of it to pay for motions and appeals that have stalled the three most damning cases from coming to trial. He persuaded the Supreme Court to treat his immunity claim — far more sweeping than Mr. Nixon’s — with a deference, at least in oral arguments, greatly out of step with the precedents the lower courts followed.

Perhaps most striking, Mr. Trump repeatedly ignored the gag orders that prohibit him from publicly attacking judges, clerks, prosecutors and witnesses — as well as their families — because he seems to believe he can do whatever he wants without fear of consequences. (On Tuesday he was held in contempt of court by Justice Merchan on nine counts and fined $9,000.) All the while, he’s marched toward the Republican nomination with a campaign infused with yet another version of law-and-order politics, this one focused on undocumented immigrants and asylum seekers rather than dope peddlers and drug addicts.

Now he’s spending his days at the defendant’s table, glowering at the judge whose daughter he endangered, as prosecutors working for the district attorney whom he has called an “animal” and a “criminal” lay out the lurid case against him. However the trial unfolds, it’s unlikely to change many people’s opinions of Mr. Trump — or of the legal system.

In polling, almost half of registered voters said they thought the charges Mr. Trump faces were politically motivated, and over two-thirds said that the outcome wouldn’t change their votes or that they would be more likely to vote for him if he was convicted.

No verdict in the Manhattan Trump case can undo the disillusionment with the system of justice that followed Mr. Ford’s pardon of Mr. Nixon. But the trial can, in its imperfect way, right the wrong of half a century ago, when the system last had its chance to prove that even the most powerful man in America is subject to its laws — especially when that man is so eager to take advantage of the politics of law and order. And there is a measure of justice in that.

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Kevin Boyle, a history professor at Northwestern University, is the author, most recently, of “ The Shattering : America in the 1960s.”

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