“Independence doesn’t mean that you decide the way you want. It means that you decide according to the law and the facts.”

— Stephen Breyer

Historically, the Judiciary in Pakistan has faced significant challenges, including political pressure and Executive interference Some of the judgment rendered by courts have raised concerns about its autonomy. An independent judiciary is vital for a democratic system. It ensures that justice is administered free from interference by the Executive or Legislative branches of the government.

The Constitution of Pakistan establishes a framework for judicial independence. However, several governments have sought to undermine it.

Not long ago, Justice Mansoor Ali Shah, the senior puisne judge of the Supreme Court raised serious concerns in this regard in a letter addressed to the chief justice of Pakistan.

In this letter, Justice Shah criticised Justice Qazi Faiz Esa, the former chief justice, describing hi tenure as marked by “pettiness” and a failure to uphold the Judiciary’s role as a check on Executive power. Justice Shah alleged that Justice Esa allowed external influences to undermine the integrity of the Judiciary.

The harsh language used in the letter highlights the challenges the Supreme Court faces. There is also the question about the appropriateness of such a critique and its potential impact on public perception of the Judiciary’s credibility and independence.

Conflicting verdicts reached by SC judges and benches and the perceived partisanship of some of them have eroded public confidence in the Judiciary. The perception that the Supreme Court can be swayed by political considerations undermines its legitimacy and the overall trust in the legal system. The apex court has the power to review the legality of any law and to interpret it in a manner that aligns it with the constitution, Numerous precedents exist including the District Bar Association (Rawalpindi) (PLD 2015 SC 401) case. However, the recent correspondence raises concerns about a potential deviation.

Historically, the judiciary has faced external pressures. This has been frequently alleged including during and after the hearing of the cases involving enforced disappearances, illegal detention, blasphemy and the election schedule.

When discussing fundamental or constitutional rights, it’s essential to recognise that these are enshrined in the constitution and that the Judiciary should always protect these. However, violations of these rights in various forms, including illegal detentions, denial of the right to a fair trial, enforced disappearances, restrictions on freedom of speech and other fundamental liberties have been happening. The apex court is tasked with safeguarding these rights.

A pressing concern is the backlog of pending cases including cases related to enforced disappearances. The situation is particularly disturbing as the plight of the missing people and their families has yet to end in a fair and satisfactory manner.

Illegal detention and political victimisation are far more important than a political party not getting an electoral symbol. The fundamental rights of citizens must take precedence. The judiciary has a profound responsibility to protect these rights. The Supreme Court must rise to the occasion and prioritise the upholding of the constitution and the rights it guarantees, rather than engaging in actions that may detract from this essential duty.

The court’s role of defending the constitution is paramount. It is imperative that it addresses these urgent issues with the seriousness they deserve. The impact of Justice Shah’s letter is likely to resonate throughout the judicial system.

Meanwhile the legal fraternity, including the Bar councils and associations, must carefully scrutinise the 26th Constitutional Amendment and assist the Supreme Court in determining its constitutionality. The superior courts have always had the power to review the legality of Legislative as well as Executive actions. If a law or action is found to be unconstitutional, the Judiciary can declare it void. The courts must exercise this power impartially. The judges must not allow personal considerations to distract them from this duty.

The writer, a lawyer, can be reached at shahrukhmehboob4@gmail.com