By Justice Markandey Katju
One of the causes for the present crisis in Pakistan is the lack of an independent judiciary.
Every society needs a judiciary. The reason for this is that it is in the nature of things that there will be some disputes between the people among themselves, and between the people and the authorities. Hence there must be a forum for peaceful resolution of these disputes, otherwise they will be resolved violently, with guns, bombs, swords or lathis. Since time immemorial every society in the world has had a judiciary, and it cannot do without it, as without it there can be no peace.
However, the essential requirement in a judiciary is that the judges therein are honest, impartial, and independent, otherwise it is no judiciary but just an empty shell.
Unfortunately, the judiciary in Pakistan has a poor record, and it has invariably kowtowed before the military. Thus, the then Chief Justice of Pakistan Munir used the devious and underhand 'doctrine of necessity' to validate the army coup in 1958 by Gen Ayub Khan, and the same doctrine has been used to validate subsequent army coups too, though they were clearly unconstitutiional. The then Chief Justice of Pakistan Maulvi Mushtaq Husain ordered Prime Minister Bhutto to be hanged by a dishonest verdict ( apparently at Gen Zia ul Haq's command ) in what is widely regarded as 'judicial murder'. Nearer in time, a bench of Pakistan's Supreme Court headed by Chief Justice Qazi Faez Isa deprived former Prime Minister Imran Khan's PTI party of its election symbol ( to weaken it in the elections held on 8th February 2024 ) by a blatantly dishonest judgment.
Qazi Faez Isa refuses to hear the cases of PTI leaders and workers, as well as the 14,000 Pakistanis, mostly arrested on false charges, after the incident of 9th May 2023, who are still incarcerated and rotting in jail in inhuman conditions for almost an year. Instead he takes up and hears old matters like the validity of Bhutto's trial, although Bhutto has been dead for 45 years and hardly anyone is interested in the matter now, or the Faizabad dharna case. It seems he is more interested in dead persons rather than living ones.
The malaise and putrefaction in Pakistan's judiciary came to the limelight with the explosive allegations of 6 judges of the Islamabad High Court who wrote to the Chief Justice of Pakistan and members of the Supreme Judicial Council of Pakistan complaining of blatant interference by the intelligence agencies in their functioning.
Shakespeare said in Hamlet '' Something is rotten in the state of Denmark '', and similarly it can be said that something is rotten in Pakistan's judiciary.
It is submitted that the cause of this state of affairs, which affects the entire people of Pakistan, is the judges of Pakistan, particularly those at the higher level. Every institution is the human personnel who are manning that institution. They must be first class people. Unfortunately that is lacking in Pakistan, and many of the top judges are toadies and servile before the Pakistan Establishment, and complicit with it.
Some say what can the judges do when confronted by the army, which has guns ? But did Chief Justice Coke surrender before King James I of England, and did Qazi Sirajuddin kowtow before the Sultan of Bengal ? The King and the Sultan too had armies.
So it all depends on what metal one is made of.
I submit that peace can never come to Pakistan untill and unless it has fearless, independent, and honest judges, particularly in the higher echelons. Time alone can tell whether the preponderant number of Pakistan's judges will be like Justice Athar Minallah, who spoke courageously and fearlessly in Court ( see my article above )
(Justice Katju is a retired judge of the Supreme Court. These are his personal views.)
