The struggle to save the judiciary

AS an editorial in this newspaper lamented recently, and letters of a courageous few judges highlight, the Supreme Court is fighting a battle of survival, with some judges refusing to go down without a fight, striving to prevent complete capitulation.

The ongoing struggle over the judiciary’s independence, with most judges remaining passive spectators, echoes the lawyers’ movement in Pakistan — a pivotal moment when one chief justice, despite his shortcomings, dared to confront the most powerful people in Pakistan.

The lawyers’ movement, a mass mobilisation of lawyers and civil society, catalysed the country’s most significant democratic reforms in decades. By confronting Gen Musharraf’s authoritarian interference in the judiciary, the movement spurred not just the restoration of the judiciary but facilitated constitutional milestones like the 18th and 19th Amendments, strengthening judicial independence by taking appointments away from the government and giving them to a panel of senior judges and lawyers.

Ultimately, the movement catalysed the downfall of Gen Musharraf’s military regime, paving the way for a democratic transition in Pakistan. These changes promised a judiciary that could serve as a genuine check on executive power — a judiciary with the teeth to enforce constitutional rights, protect civil liberties, and hold the state and the politically powerful military accountable.

Despite political pressures, Pakistan’s judiciary showed it could stand as a bulwark for the marginalised.

Yet, the history of Pakistan’s judiciary tells a more nuanced story, tempered by a commitment to fairness and shaped by assertive, independent rulings.

While moments of subjugation, such as the tragic validation of martial laws or the 1979 execution of Zulfikar Ali Bhutto, cast long shadows, the judiciary’s defiance in the face of authoritarianism has ignited a legacy of resilience, with judges and lawyers repeatedly challenging authoritarian overreach. This legacy of resistance keeps the embers of justice alive.

Since the 1990s at least, Pakistan’s judiciary has made significant progress, weathering unrelenting pressure — from generals seeking compliance, civilian leaders disrupting court proceedings by sending armed goons to the court, and local interest groups undermining its autonomy. Despite these challenges, it has often pushed back, reinterpreting constitutional provisions to maintain influence over judicial appointments and issuing landmark rulings that uphold democratic principles.

The [Darshan Masih vs The State case][1] exemplifies the judiciary’s evolving role: in response to a desperate telegram from bonded laborers under the custody of a feudal landowner and collusion of police with him, the court defied entrenched Anglo-Saxon traditions of “judicial restraint” to confront modern-day slavery head-on, taking unprecedented action to hear their plea. This bold move not only affirmed fundamental rights but also signalled the judiciary’s willingness to challenge entrenched power structures and ensure justice for the most marginalised.

Despite political pressures, Pakistan’s judiciary showed it could stand as a bulwark for the marginalised. Landmark rulings have redefined the legal landscape, from recognising environmental protection as a constitutional right to declaring civilian trials by military courts unconstitutional. The echoes of past defiance still shape the fight for justice today, with six judges’ letter serving as a striking reminder of this tradition.

The post-2007 spirit of defiance re-emerged in the 2024 letter authored by six Islamabad High Court judges, addressed to the Supreme Judicial Council. In a rare public confrontation, these judges exposed the alleged interference of Pakistan’s unchecked intelligence agencies in judicial affairs. Their claims of pressure, surveillance, and threats to their families underscored the growing institutional challenges to judicial independence. The letter, described as the judiciary’s boldest act of defiance since the lawyers’ movement, highlighted the extent to which the judiciary must still fight to uphold its autonomy.

The independence of Pakistan’s judiciary, once a hard-won triumph of public protest and constitutional reform, is now under siege. The 26th Constitutional Amendment, passed in November 2024, pushed through under murky circumstances and amidst allegations of coercion and abduction of opposition lawmakers, fundamentally alters the judiciary’s structure.

By reducing the share of judges making judicial appointments, increasing political appointees, and enabling direct ministerial involvement in bench composition and selection of judges, the amendment effectively shifts control from the courts to the government. This structural shift not only weakens the judiciary’s ability to appoint judges independently but also undermines its role as a check on state overreach.

What was once a symbol of institutional resilience is now threatened by a measure that cloaks the centralisation of power in the language of reform. Under the guise of reform, the delicate equilibrium established by the 18th and 19th Amendments has been upended.

More troubling are the speed and opacity with which these changes were enacted. Passed in an overnight session with little public debate, the 26th Amendment represents a deliberate shift in how power operates in Pakistan’s constitutional framework. While it maintains the veneer of democratic procedure, the substance is unmistakably autocratic.

The lesson is clear: democratic backsliding does not always arrive with the sound of tanks or the thunder of guns. In Pakistan, it is unfolding behind closed doors, codified in legislative text, and sold to the public as necessary reform. The same judiciary that once defied a dictator is now being systematically undermined, and its independence curtailed.

The defiance shown in 2007 and reaffirmed in the 2024 judges’ letter is a stark reminder that judicial independence is not a given. It must be continually defended against both overt and subtle encroachments.

If Pakistan’s judiciary succumbs to complete political control, the nation stands to lose not only the rule of law but also the democratic progress built on the sacrifices of its past reformers.

Preserving judicial independence is not just about safeguarding courts — it’s about ensuring the very fabric of Pakistan’s democracy remains intact. The bar associations can no longer afford internal discord; they must unite with the embattled judges and rally civil society to prevent an irreversible collapse.

The writer is a professor of economics at the New Economic School in Moscow.

X: [mrsultan713][2]

Published in Dawn, February 10th, 2025

[1]: https://rsilpak.org/2023/bonded-labour-what-is-the-way-forward/#:~:text=However%2C%20it%20was%20not%20until,Abolition)%20System%20Act%2C%201992. [2]: http://