judiciary of pakistan essay

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Balancing Justice: The Judiciary’s Crucial Role in Democracy and the Rule of Law in Pakistan

In the grand theatre of politics, democracy is the stage where every citizen is both the audience and the actor, shaping the narrative of a nation’s destiny. Democracy flourishes when the judiciary remains steadfast in its commitment to core constitutional principles, ensuring that the rule of law prevails over the transient winds of political expediency. The following article will discuss the current and historical democratic situations of Pakistan and the role judiciary has played in it.

Over time, Pakistan has witnessed increased inter-institutional rivalry as political parties and elected bodies vie for control, particularly in a context where the military historically wielded significant influence. The superior judiciary has emerged as a pivotal player in resolving disputes among political and governmental elites. Its role in Pakistan’s political landscape is multifaceted, encompassing both support for and challenges to democratic principles. However, concerns have been raised regarding judicial actions that may have hindered democratic functions.

The preamble of Pakistan’s Constitution emphasizes the importance of democracy and the rule of law. However, historical instances suggest a departure from these principles within the judiciary. For instance, in 1953, Governor General Ghulam Muhammad dismissed Prime Minister Khawja Nazimuddin and dissolved the Constituent Assembly in 1954 , actions supported by the judiciary. This raises questions about the judiciary’s commitment to impartial and fair justice. By condoning executive overreach and subverting the constitutional order, the judiciary failed in its duty to ensure a balanced and just system, thereby undermining the very foundations of democracy it is meant to protect.

The court’s validation of the assembly’s dissolution created a regrettable precedent for Pakistan’s parliamentary history. This decision led to political unrest, which was detrimental to the advancement of democracy. Following such a ruling, the judiciary asserted itself as a barrier to democracy.

The first Constitution of Pakistan was short-lived, abolished by Gen. Ayub Khan upon assuming office as Chief Martial Law Administrator in 1958, marking the onset of military dictatorship. The Supreme Court of Pakistan further legitimized the military coup under the Doctrine of State Necessity . This pivotal moment not only underscored the fragility of democratic institutions but also set a precedent for future military interventions. The judiciary’s endorsement established a troubling precedent, suggesting the rule of law could be subverted in the name of national emergencies. This continues to reverberate through Pakistan’s democratic journey, highlighting the enduring challenge of maintaining constitutional governance and civilian supremacy over the military.

The imposition of martial law, in 1969 by Yahya Khan- upon the resignation of Ayub- was challenged in the Constitutional Case of Miss Asma Jilani v. Government of Punjab , where the transfer of power to Yahya Khan was deemed illegal. Through the exercise of judicial review, the Dosso Case , which had previously legitimized the Doctrine of State Necessity, was overturned, and the doctrine itself was condemned. The landmark decision in the Asma Jilani case marked a pivotal moment in Pakistan’s democratic trajectory, signaling a return to constitutional governance following a prolonged period of dictatorship. However, the judiciary’s response highlights a pattern of supporting prevailing political power dynamics rather than adhering strictly to judicial and constitutional principles. These episodes highlight the complex interplay between the judiciary and political forces in Pakistan.

In the case of Begum Nusrat Bhutto v. Chief of Army Staff , the Supreme Court dismissed Bhutto’s petition against Zia-ul-Haq’s martial law, citing the Doctrine of State Necessity. This decision prolonged military rule, showcasing challenges in fostering democratic governance amidst executive and judicial dysfunction. From the 1990s onward, Pakistan’s courts embarked on a trajectory of increasing independence and intervention, reaching a highpoint during the confrontation between the superior judiciary and Musharraf’s regime in 2007. The Supreme Court challenged key aspects of Musharraf’s rule, such as his dual roles and attempts to dismiss Chief Justice Chaudhry. Judges’ resistance sparked a nationwide pro-democracy movement that led to Musharraf’s downfall. This defiance solidified the judiciary as a power centre, signalling a significant shift towards a stronger judiciary and bolstering democratic principles in Pakistan.

Following Musharraf’s era, Pakistan witnessed the establishment of elected civilian rule, during which judges assumed a custodial role within the political system. The Supreme Court, with its emphasis on combating political corruption and its broad interpretation of authority, notably removed two elected prime ministers, Yousuf Gilani and Nawaz Sharif. While addressing political and administrative corruption was undoubtedly necessary, the judiciary’s repeated interventions in executive and legislative domains ultimately undermined the supremacy of elected civilian institutions.

The period between 2017 and 2018, saw a weakening of the elected government system and paved the way for the military’s resurgence in political dominance. The Supreme Court’s vigorous anti-corruption stance primarily targeted the PPP and PML-N, often in response to petitions initiated by PTI members, leading to the disqualification of key leaders, notably Nawaz Sharif, from holding political office . Imran Khan’s popularity, complemented by the Supreme Court’s anti-corruption initiatives and the military’s intervention to tilt the electoral scales in favor of the PTI, secured the party’s victory in the 2018 elections. Meanwhile, opposition figures from the PPP and PML-N found themselves entangled in legal battles and incarceration over corruption allegations, against a backdrop where judicial impartiality came under scrutiny due to perceived executive influence .

By 2021, tensions between the military leadership and Khan had escalated, creating an opening for opposition parties to mount a challenge against the PTI government, culminating in the Parliament’s April 2022 vote of no confidence against Khan. Khan’s dissolution of the Assemblies before vote, prompted the Supreme Court to intervene, albeit in a manner perceived as highly unusual due to the timing of its action outside regular court hours raising questions about the judiciary’s eagerness to assume roles traditionally attributed to the legislature and the executive .

Recently, the Supreme Court upheld the electoral commission’s decision to bar the PTI from using its cricket bat electoral symbol , further exacerbating tensions surrounding the elections. The party’s leaders have faced imprisonment, and many of their candidates have been denied nomination papers, fueling controversy, and raising doubts about the transparency of the electoral process. These actions, aimed at sidelining one of Pakistan’s major political parties, threaten to undermine the credibility of the electoral process and destabilize the country’s democratic institutions. In another contentious ruling, the Court lifted the lifetime ban on Sharif from contesting elections, adding to the scrutiny surrounding its impartiality and casting doubt on its ability to uphold the rule of law consistently.

The historical and present events, as highlighted above, in Pakistan underscore the urgent need for judicial reforms, especially in the context of the country’s precarious economic situation and its struggle to uphold democratic principles. The judiciary, as the guardian of the nation’s laws and Constitution, plays a pivotal role in averting potential crises and maintaining stability. The period between 1990 and 2007 exemplifies this, as the judiciary’s impartial stance was instrumental in preserving law and order, thereby safeguarding democracy against military interventions. A fair and independent judiciary is indispensable for upholding the rule of law and ensuring that democratic processes remain robust and resilient. Without such a system, there is a risk of unchecked power, erosion of civil liberties, and the destabilization of democratic institutions. Therefore, the imperative for impartial and fair judicial reforms in Pakistan lies in their critical role in safeguarding the rule of law and democracy, thereby preventing the country from descending into chaos and turmoil.

A concerning fact is that the Rule of Law in Pakistan frequently seems to be an abstract ideal rather than a tangible reality. This is highlighted by the widespread belief that individuals in positions of authority are immune from repercussions as well as an apparent bias in the judiciary towards incumbent political leaders. This structural disparity threatens the core principles of democracy and the Rule of Law in addition to undermining public confidence in the judiciary. The perception of unequal treatment under the law is reinforced when political leaders enjoy impunity while in office, like in the case of Nawaz, Imran and other PPP/PTI/PML-N leaders, and only come under legal scrutiny after losing their positions of authority. A situation like this not only maintains a state of lawlessness but also encourages citizen pessimism and dissatisfaction which eventually erodes the foundation of democratic governance.

In order to eradicate these issues and ensure an impartial and just judiciary prevails, it is important to maintain judiciary’s independence from external influences, particularly political and military interference. Recently, certain Supreme Court judges resigned from office as their independence was being compromised, also judges of the Islamabad High Court alleged interference by the country’s intelligence agencies in judicial affairs . To curb such issues robust legal protections, transparent appointment processes, and adequate funding to reduce reliance on external sources should be introduced.

A vital role can be played by a merit-based appointment system, currently, although not apparent, most of the judicial appointments are political based and the establishment also plays a vital role in their appointments. The legitimacy and integrity of the judiciary can be improved by reducing the impact of nepotism and favouritism through the implementation of merit-based standards for judicial appointments and promotions. To guarantee accountability and openness, impartial judicial commissions made up of representatives from civil society and legal professionals might supervise the selection procedure. Moreover, strengthening legal institutions and enhancing accessibility for marginalized groups are critical steps toward fostering trust in the justice system. International collaboration can provide valuable insights and support, but sustainable change ultimately depends on domestic commitment to upholding democratic principles and the rule of law.

The opinions expressed in this article are the author's own and do not reflect the views of LEAP Pakistan or Pakistan College of Law.

Muhammad Mustafa Arif

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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.

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.

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.

The writer is a lawyer based in Lahore with an active interest in climate justice. He is also the Fakhruddin G. Ebrahim fellow at the Human Rights Commission of Pakistan.

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Essay On Judicial System Of Pakistan – 100, 150, 200, 250, 300, 500 words

The judicial system of Pakistan is an integral part of the country’s governance, tasked with upholding the rule of law and ensuring justice for all citizens. As a key pillar of the state, the judiciary plays a crucial role in interpreting and enforcing laws, resolving disputes, and safeguarding the rights and liberties of individuals. The system is composed of various courts, including the Supreme Court, High Courts, and lower courts, each with its own jurisdiction and responsibilities.

Over the years, the judicial system in Pakistan has undergone significant developments and reforms aimed at enhancing its effectiveness, transparency, and independence. Despite these efforts, challenges such as backlog of cases, delays in the dispensation of justice, and issues related to access to justice persist. Understanding the intricacies of the judicial system is essential to comprehend its functions, structure, and impact on the society at large.

In this blog post, we will delve into various aspects of the judicial system of Pakistan, exploring its evolution, current status, and future prospects. Through a series of essays, we aim to provide insights into the challenges and opportunities facing the judiciary, the impact of judicial decisions on society, and the importance of a robust and efficient legal system in a democratic society.

100 words Essay On Judicial System Of Pakistan

The judicial system of Pakistan plays a crucial role in upholding the rule of law and ensuring justice for all. The system is based on the principles of independence, impartiality, and fairness. The Supreme Court is the highest judicial authority, followed by High Courts and lower courts. The system is a blend of British common law and Islamic law, with the Constitution serving as the supreme law of the land. However, the judicial system faces challenges such as delays in court proceedings, corruption, and lack of access to justice for marginalized communities. Despite these challenges, efforts are being made to reform and strengthen the judicial system to ensure speedy and effective justice delivery.

150 words Essay On Judicial System Of Pakistan

The judicial system of Pakistan plays a crucial role in upholding the rule of law and ensuring justice for all individuals in the country. The system is composed of a hierarchical structure, with the Supreme Court at the apex, followed by High Courts, District Courts, and Magistrate Courts. Each court is responsible for adjudicating disputes, interpreting laws, and ensuring the enforcement of legal rights.

The judiciary in Pakistan faces several challenges, including delays in the disposal of cases, lack of resources, and corruption. Despite these challenges, the judiciary has taken steps to improve its efficiency and transparency, such as introducing alternative dispute resolution mechanisms and implementing technology to streamline court processes.

The independence of the judiciary is vital for the functioning of a democratic society, and it is essential that the judiciary in Pakistan remains impartial and free from external influence to uphold the principles of justice and fairness for all citizens.

200 words Essay On Judicial System Of Pakistan

Pakistan’s judicial system plays a crucial role in upholding the rule of law and ensuring justice for its citizens. The system consists of a hierarchical structure, with the Supreme Court at the apex, followed by high courts at the provincial level, and subordinate courts at the district and lower levels.

The Supreme Court of Pakistan is the highest judicial authority in the country and has the power to hear appeals from lower courts, as well as to interpret the constitution. The high courts of each province have jurisdiction over their respective regions and handle both civil and criminal cases. The lower courts, including district and sessions courts, magistrate courts, and special courts, are responsible for adjudicating disputes at the grassroots level.

One of the key features of Pakistan’s judicial system is the concept of separation of powers, where the judiciary operates independently from the executive and legislative branches of government. This separation ensures that judges are able to make impartial decisions based on the law, rather than being influenced by political pressures.

However, the system has its challenges, including issues of backlog, delays in court proceedings, and corruption. Efforts are being made to address these issues through reforms aimed at improving efficiency, transparency, and accountability within the judiciary.

In conclusion, Pakistan’s judicial system is a cornerstone of the country’s democratic framework, and efforts to strengthen and reform it are essential to ensuring access to justice and upholding the rule of law.

250 words Essay On Judicial System Of Pakistan

The judicial system of Pakistan plays a crucial role in upholding the rule of law and ensuring justice for its citizens. The system comprises of different levels of courts, including the Supreme Court, High Courts, District Courts, and Special Courts. The judiciary in Pakistan is independent and impartial, responsible for interpreting laws and resolving disputes in a fair and transparent manner.

The Supreme Court of Pakistan is the highest judicial authority in the country, with the power to hear appeals from lower courts and deal with constitutional matters. The Chief Justice of Pakistan heads the Supreme Court and is responsible for administering justice at a national level. The High Courts are the highest courts in each province and have jurisdiction over civil and criminal cases within their respective territories.

The District Courts function at the grassroots level, hearing cases related to family matters, property disputes, and criminal offenses. Special Courts are established to deal with specific areas of law, such as anti-terrorism courts and anti-corruption courts.

The judicial system in Pakistan faces challenges such as delays in the disposal of cases, lack of resources, and corruption. Efforts are being made to address these issues through reforms and modernization of the judiciary. The introduction of alternative dispute resolution mechanisms and the use of technology have helped improve the efficiency and effectiveness of the judicial system.

Overall, the judicial system of Pakistan plays a crucial role in safeguarding the rights of its citizens and upholding the principles of justice and equality. It is essential for a functioning democracy and a just society.

300 words Essay On Judicial System Of Pakistan

The judicial system of Pakistan plays a crucial role in upholding the rule of law and ensuring justice for all citizens. It is a well-established system that consists of different levels of courts, each with specific jurisdictions and functions. The judiciary in Pakistan is independent and autonomous, as enshrined in the Constitution of the country.

The Supreme Court of Pakistan is the apex court in the judicial hierarchy and serves as the final arbiter of legal disputes. It has the power to interpret the constitution, review laws, and ensure that government actions are in line with the principles of justice and fairness. The Supreme Court also has the authority to hear cases involving fundamental rights and constitutional matters.

Below the Supreme Court are the High Courts, which have jurisdiction over specific provinces or regions. These courts hear appeals from lower courts and have original jurisdiction over certain matters, such as cases involving high-ranking government officials. The High Courts also play a vital role in interpreting laws and ensuring their proper application.

The district and sessions courts form the lower tier of the judicial system in Pakistan. These courts have jurisdiction over specific districts and handle a wide range of civil and criminal cases. They play a crucial role in delivering justice at the grassroots level and resolving disputes in a timely and efficient manner.

One of the key features of the judicial system in Pakistan is the presence of specialized courts, such as anti-terrorism courts, family courts, and labor courts. These courts are designed to address specific types of cases and ensure that they are dealt with expeditiously and effectively.

Despite its strengths, the judicial system in Pakistan faces some challenges, such as delays in the disposal of cases, a backlog of pending cases, and issues related to court infrastructure and resources. Efforts are being made to address these challenges and improve the efficiency and effectiveness of the judicial system.

In conclusion, the judicial system of Pakistan is a vital institution that plays a crucial role in upholding the rule of law, protecting citizens’ rights, and ensuring justice for all. It is essential for the judiciary to continue to work towards enhancing its capacity and addressing its challenges to serve the people of Pakistan better.

500 words Essay On Judicial System Of Pakistan

The judicial system in Pakistan plays a crucial role in upholding the rule of law and ensuring justice for all citizens. It is an integral part of the country’s governance structure and is responsible for interpreting and enforcing the laws of the land. The judiciary in Pakistan is comprised of a three-tier system, consisting of the Supreme Court at the apex, High Courts in each province, and lower courts at the district and tehsil levels.

The Supreme Court of Pakistan is the highest court in the country and serves as the final court of appeal. It has original, appellate, and advisory jurisdiction, and is responsible for interpreting the Constitution of Pakistan. The Chief Justice of Pakistan heads the Supreme Court, along with a panel of judges who are appointed by the President on the advice of the Prime Minister. The Supreme Court plays a crucial role in safeguarding the fundamental rights of citizens, ensuring transparency and accountability in governance, and settling disputes between the federal and provincial governments.

The High Courts in Pakistan are the highest judicial bodies in each province and are responsible for overseeing the administration of justice at the provincial level. They have both appellate and original jurisdiction, and hear cases that are beyond the jurisdiction of lower courts. Each High Court is presided over by the Chief Justice of the High Court, along with a panel of judges who are appointed by the President on the advice of the Governor of the province. The High Courts play a significant role in ensuring the rule of law at the provincial level, protecting the rights of citizens, and maintaining judicial independence.

The lower courts in Pakistan are the frontline of the judicial system and are responsible for hearing cases at the district and tehsil levels. These courts include the civil courts, criminal courts, family courts, and special courts for specific matters such as anti-terrorism and narcotics cases. The judges in lower courts are appointed by the respective High Courts, and they play a vital role in administering justice at the grassroots level, resolving disputes between individuals, and ensuring access to justice for all citizens.

The judicial system in Pakistan faces several challenges, including delays in the disposal of cases, lack of resources and infrastructure, and instances of corruption and inefficiency. The backlog of pending cases is a significant issue, with millions of cases pending in courts across the country. This not only leads to delays in delivering justice but also undermines the credibility of the judicial system. In addition, there are concerns about the lack of independence of the judiciary, with allegations of political interference and influence in the appointment and promotion of judges.

To address these challenges, several reforms have been introduced in the judicial system of Pakistan. The introduction of alternative dispute resolution mechanisms, such as mediation and arbitration, has helped in reducing the backlog of cases and promoting speedy resolution of disputes. Efforts have also been made to improve the infrastructure of the courts, provide training to judicial officers, and strengthen accountability mechanisms to address instances of corruption and misconduct.

In conclusion, the judicial system of Pakistan plays a vital role in upholding the rule of law and ensuring justice for all citizens. Despite facing challenges, the judiciary in Pakistan continues to strive for transparency, accountability, and independence. By implementing reforms and strengthening the institutions of the judiciary, Pakistan can further improve access to justice, protect the rights of its citizens, and uphold the principles of democracy and the rule of law.

Final Words

In conclusion, the judicial system of Pakistan plays a crucial role in upholding the rule of law and ensuring justice for all citizens. Despite facing various challenges, such as delays in the delivery of justice, lack of resources, and corruption, the judiciary in Pakistan continues to strive towards transparency, accountability, and fairness. Reforms are essential to strengthen the judicial system, improve efficiency, and enhance access to justice for all individuals. It is imperative for the government, judiciary, legal professionals, and civil society to work together to address these issues and build a more responsive and effective legal system. By doing so, Pakistan can promote the rule of law, protect fundamental rights, and foster trust in the judicial system among its citizens. Ultimately, a strong and independent judiciary is vital for the progress, stability, and development of any nation, including Pakistan.

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Independence of Judiciary in Pakistan: An analysis of 18th & 19th Constitutional Amendments

September 2021
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Pakistan’s judicial system

The judiciary’s role in the evolution of Pakistan’s democracy has been invaluable

the writer is a practising lawyer he can be reached at a razvi ymail com

Nothing seems to be more essential to the stability and growth of a country than a strong judicial system. A robust judiciary, impartial and independent of all external influences, is a cornerstone for stability and growth. A strong judicial system is one that inspires confidence in ordinary individuals and provides them with an innate satisfaction that they can turn to judicial forums for speedy justice; that their cases will be heard and adjudged impartially, fairly and in the most reasonable manner. To reach a judgment solely on the basis of evidence and facts is the only way for our courts to discharge their constitutional obligations, and our judiciary is persistently trying to achieve the same with utmost respect while upholding the Constitution and rights of individuals.

Despite of Pakistan’s checkered history, its judiciary has persevered in the face all political crises and has emerged as a beacon of hope for its people. The judiciary’s role in the evolution of Pakistan’s democracy has been invaluable. Although many attempts have been made to undermine its mandate, the judiciary has grown stronger and more independent with every obstacle it has encountered.

In a democratic state, the role of the judiciary is essential in maintaining the balance of power and upholding a system of checks and balances. All members of the judicial system, at every level, have been tirelessly making efforts to uphold the law, set better precedents, and provide justice to the ordinary citizens of the country. Numerous developments have been made to organise the system in a way that allows for swift provision of justice. The National Judicial Policy, 2009 has played a major role in assisting the disposal of cases despite human resource and infrastructure deficiencies. In tandem with the resilience of the Pakistani people, its judiciary is also equally resilient. One of the greatest signs of improvements in the judiciary is the increasing number of cases registered in courts, exhibiting that people are trusting the system to uphold justice. This is hope for a more just and stable future.

The institution has remained independent and focused. The Chief Justice of the apex court, as the driving force of the judiciary, has always stood like an iron wall protecting the institution from any external threat and has never allowed any unwarranted action to demoralise public confidence. The commands of the judiciary have always been held by the best in the benches. Refined judges continue to emerge and take control of the institution, proving that it belongs to the most honest and most gifted individuals that have incredible grasp over legal, moral and ethical matters. The current Chief Justice of Pakistan, Umar Ata Bandial, is one the finest and most well-spoken judges our country has ever produced. In recent times, various attempts have been made to shake the public’s confidence in the judiciary. However, the manner in which His Lordship tackled the adversities with sheer intelligence merits applause. It will not be incorrect to suggest that by collective wisdom of the judiciary, Pakistan as a state was safely anchored ashore from the whirlpool of political uncertainty.

The power of a strong judiciary was recently witnessed when Justice Qazi Faez Esa was subjected to false and fabricated reference, which was collectively dismissed by the judiciary later on. The entire episode till it reached its climax showed that even a judge is accountable. As of today, Justice Qazi Faez Esa continues to administer justice fairly and impartiality, whereas the fingers that were wrongfully pointed at him have twisted. As the recent events in the country unfold, it is a bitter truth that only the judiciary remains an institution that has gained maximum support from the public due to its integrity, honesty and independence.

Published in The Express Tribune, July 26 th , 2022.

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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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Monday, 16 September 2024

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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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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Role of Judiciary

The judiciary in any country is the custodian of the constitution and guarantor of the fundamental rights of the people. The institution is not only considered the most sanctimonious pillar of the state but also a foundation on which civilizations are built. All philosophies ungrudgingly acknowledge the independence of the judiciary as a means to ensure social amity, political development, peace and progress in any society. The judiciary in our country has passed through different phases. One of the phases is known as ‘doctrine of necessity’, which undermined the role of judiciary. But after the judicial movement, the institution started to regain its last glory.

Now our judiciary is performing wonderfully well and has rekindled the hopes of common people that there is someone who will protect their basic human rights. The institution is in the limelight since the CJP Justice Anwar Zaheer Jamali took up the Panamagate case in November 2016. Our judiciary is now giving hearing to all the cases without any discrimination that the person is high profile leader or a common man. Because of that some prominent parliamentarians like Mian Nawaz Sharif and Jahangir Tareen were disqualified. Besides, the institution is also well aware how to deal with anyone who tries to malign the judiciary or the honorable judges. The apex court issued some intensive contempt of court proceedings against those who speak against the Supreme Court judges. Nehal Hashmi is one such example who has completed his punishment in contempt of court.

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Apart from these Panamagate and post-Panamagate proceedings, the apex court has also started to protect the rights of common people. Such cases are dubbed as ‘public interest litigation’. During the last few months, the incumbent CJP Justice Mian Saqib Nisar took a large number of Suo Motu actions on a variety of issues ranging from the contaminated drinking water and substandard milk to extra-judicial killings, rape-cum-murder incidents of minor girls, illegal constructions, blockade of roads for VVIP movements, security barriers in public streets, Axact fake degree scam, laundered money of Pakistanis in foreign accounts, sale of substandard and expensive coronary stents, high fees charged by private medical colleges, media spending, and lack of health facilities at public hospitals, police encounters in Punjab etc. In fact, the chief justice of Pakistan is on a mission which is widely in the interest of the common masses, the citizens of Pakistan.

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Because of these initiatives, a section of society is criticizing the honorable Chief Justice for interfering in the domain of executives but he has denied any such interference. He responded that he is not bothered by criticism and is committed to protect the fundamental rights of the citizens of the country. He clarified that accusations hurled at him are baseless as he is merely trying to fight the social evils/issues. He also gave example of the pension of widows which SC increased from Rs. 1300 to Rs. 8000 to at least facilitate them in the purchase of painkillers.

Now attention should also be given to judicial reforms. The judiciary has the prime responsibility to provide justice on time and in accordance with the law. There is one complain which is mostly heard is that people don’t get justice on time. This delay is one of the major reasons for which our judiciary is being criticized. One of its major reasons is that almost 150 cases are referred to a judge everyday, which is too much. Despite working hard and beyond office hours, the size of litigation is not decreasing. Its foremost reason is the non-availability of sufficient judges at all levels and absence of stringent provisions to discourage frivolous litigation.

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Chief Justice of Pakistan Mian Saqib Nisar also addressed this issue and chaired meetings on judicial reforms and how to minimize the backlog. There are many aspects which are under consideration like e-facilitations to public litigants and lawyers to ensure easy access to courts, introduction of information technology in courts so as to facilitate public, effective court and case management, promotion of Alternate Dispute Resolution (ADRs), training of judges, law officers and staff, categorization of courts to provide inexpensive and expeditious justice to general public. These reforms have at some extent have been introduced in Punjab and are a roadmap for rest of the judiciary. The Chief Justice emphasized the importance of alternative dispute resolution because it will decrease the burden of the already overburdened formal justice system.

BY and large our judiciary is performing well. Even though there is still room for improvement in our judicial system but it should be accepted that with present number of judges and the circumstances the judges are trying its best to deliver.

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The author is a freelance writer based in Lahore.

[email protected]

Syed Hammad Ahmad

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Discuss the role of the judiciary in the constitutional development of Pakistan CSS 2017

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CSS Solved Pakistan Affairs Past Paper 2017 | Discuss the role of the judiciary in the constitutional development of Pakistan CSS 2017

The answer is solved on the given pattern, which Sir Syed Kazim Ali teaches to his students, who consistently score the maximum because of their attempting the questions. The content is based on historical facts taught by Sir Rameez Ch .

1- Introduction:

The Judiciary, the third pillar of the government, guards and interprets the constitution of Pakistan. Thus, its role has been significant in empowering the executive, eliminating the political crisis, promoting democracy, and, above all, uplifting the constitution of the country.

The role of the judiciary in the constitutional development

The positive role of the Judiciary

Strengthening the Executive: The Maulvi Tamizzudin Case
Restricting the powers of governor-general: The Usif Patel Case
Saving the country from the consequences of political instability: Doctrine of necessity
Mitigating the political crisis: National Reconciliation Ordinance
Accommodating democratic amendments: the 18th amendment

Critical Analysis

Answer to the Question

Introduction

The judiciary has played a paramount role in shaping the constitutional fabric of Pakistan. Since it is the guardian of the constitution, its role has been significant, whenever the country has faced the problem of political reorganization and political legitimacy. Similarly, the verdicts of the superior court of Pakistan in different seminal cases, such as the Maulvi Tamizuddin Case, Dosso Case, and Nusrat Bhutto Case, have impacted the future political culture of Pakistan in many positive ways. For instance, the Maulvi Tamizuddin case has strengthened the Executive, making the Governor-General the supreme authority to dissolve the assemblies. Likewise, the Dosso and Nusrat Bhutto Case respectively validates Doctrine of Necessity in critical situations, saving the country from the repercussions of political turmoil several times. Moreover, appreciation and rejection of some constitutional moves, such as the 18 th amendment and National Reconciliation Ordinance (NRO), by the apex court are also some major steps to strengthen the constitution. Undoubtedly, the Judiciary has emerged as a more powerful and independent institution in the country since 2009. Nevertheless, there is still room for improvement and functional changes in the judicial system where courts can take decisions without any influence because Pakistan’s judiciary is directly or indirectly responsible for the development and growth of the constitution. The answer below comprehensively discusses the role of the judiciary in framing the political culture of Pakistan.

Role of judiciary in the constitutional development of Pakistan

Pakistan has faced a constitutional crisis since its inception. The country’s weak legislation and executive have derailed the constitution-making process, giving rise to political instability. Fortunately, the judiciary has recognized how to sustain the organs of the government and prevented them from disintegrating. In Maulvi Tamizzuddin Case, when the dissolution of the first constituent assembly by the then governor-general was challenged in the court, the Supreme Court has had decided in favour of the Governor-General’s decision. The court’s verdict has had rendered the executive superior and sovereign over any assembly, giving later the ultimate power to dissolve the assemblies. As a result, the empowered executive has had upheld the future political fabric of Pakistan. However, the judiciary also has restricted the executive’s power in cases, such as Usif Patel vs The Crown Case. In this case, the court has had induced the governor-general not to concentrate all powers on himself rather to form the assembly of elected representatives. Consequently, limiting power, along with accountability, has restricted the power-seekers and future politicians from taking extra-constitutional steps in the country. Thus, the judiciary has not only strengthened the executive but also promoted accountability in Pakistan.

Another important role of the judiciary in the constitutional history of Pakistan is to validate Martial Law in critical situations under the principle of Doctrine of Necessity. As the country’s political fabric has been fragile, the military coups’ installation has been necessary to save the country from civil unrest and political turmoil. That is why the cases, like Dosso Case and Nusrat Bhutto Case, under which martial law has been accounted necessary, have had protected not only the constitution but also the sovereignty and autonomy of Pakistan. Furthermore, in recent years, the judiciary has promoted democratic moves of the governments, such as the 18 th amendment, an emblem of democracy. The amendment has proved beneficial to the federation and worked for internal sovereignty, civil supremacy, and political autonomy. Likewise, declaring NRO unconstitutional in 2009, another major role of the judiciary, has had filled the political loopholes in Pakistan. As the ordinance granted the corrupt officials amnesty, its cancellation has promoted accountability in the country, mitigating political corruption and interpreting the law in the true sense. Henceforth, the judiciary’s decisive steps in constitutional development have engendered empowered, transparent, and democratic political environment in Pakistan.

The Judiciary’s role in uplifting the constitution is pivotal to the political stability in Pakistan. It strengthens, protects, and defends the constitution of the state. The historical evidences have shown how important it is for the judiciary to remain independent to protect the rule of law during constitutional and political chaos in the country. Undoubtedly, an independent judiciary is the last resort and the supreme authority when other state organs fail to resolve constitutional and political problems. Thus, the judicial system must be transparent and neutral to maintain its autonomy. In the final analysis, there has been a notable improvement in constitutional framing since Pakistan’s Judiciary has played a constructive role in political reorganization and legitimacy. Nonetheless, it has not only smoothed the way for constitutional growth but also reinforced the constitutional process.

To conclude, the constitutional and political stability of a country hinges on an impartial, independent, and unbiased judiciary. An active independent judiciary nourishes democracy and, above all, strengthens the constitution of the country. In Pakistan, the judiciary’s convincing role in historical cases has paved the way for constitutional growth and democratic development. In fact, the judiciary has rescued the country at the time of crisis, maintaining constitutional and political stability. Consequently, the country’s political fabric has been saved several times from disintegration. Pakistan, certainly, has been on a road to growth and progress since the judiciary emerged as a powerful institution. Hence, Pakistan’s constitution cannot develop and sustain properly, until its judiciary performs independently and neutrally.

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Essay: The judicial system in Pakistan

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