The Supreme Court of Pakistan is currently embroiled in an unprecedented crisis that threatens its integrity and functionality. Traditionally, once a bench is constituted, it proceeds with hearings, addressing any concerns about a judge’s involvement by appointing a new bench if necessary. This process has long safeguarded the balance and legitimacy of the judiciary. However, recent developments, particularly surrounding the Article 63-A case, have cast serious doubts over the Court’s ability to function effectively.
The Article 63-A Review: A Judicial Crisis
At the centre of this turmoil is the review of the landmark Article 63-A case, which has become a significant point of contention within the judiciary. The case, which resulted in a split decision, saw Justice Munib Akhtar write the majority judgment. As per legal convention, when a judge retires, a new judge replaces them for future hearings. However, the original author of the judgment must remain on the review bench. Justice Munib’s recent challenge to the composition of the bench reviewing this case has raised alarms. His actions not only defy judicial precedent but also threaten to destabilize the Supreme Court’s very structure. If such internal challenges persist, they could lead to a judicial paralysis, undermining the public’s trust in the institution.
The Practice and Procedure Ordinance Controversy
Justice Munib’s objections are further complicated by his challenge to the committee formed under the Practice and Procedure Ordinance, a presidential order that governs all higher courts, including the Supreme Court. His questioning of this established order is deeply problematic. By undermining the legal framework in place, Justice Munib risks creating a precedent that could disrupt the entire judicial process. Such actions threaten to push the Court into dysfunction, a scenario that Pakistan simply cannot afford at this critical juncture.
Polarization in the Judiciary: A National Concern
One of the most concerning aspects of this crisis is the polarization within the judiciary itself, reflecting the broader divisions in Pakistani society. Judges, who have sworn to uphold the law impartially, must ensure their decisions remain objective and free from external influences. Internal conflicts should be resolved discreetly, not aired publicly, as they have been in recent months. The judiciary’s internal strife mirrors the country’s deepening polarization, with the Court appearing as divided as the society it serves.
This discord has sparked calls for a Federal Constitutional Court with equal representation from all provinces, a concept that is gaining traction. This once-unthinkable proposal is now being seriously considered as a solution to the ongoing crisis, highlighting just how dire the situation has become.
The Inefficiencies in Terrorism Prosecutions: A National Security Concern
While the Supreme Court grapples with internal divisions, the broader judicial system faces another equally pressing issue—the prosecution of terrorism cases. For over two decades, Pakistan has been at war with terrorist groups like the Baloch Liberation Army, with the military and security forces playing a key role in countering these threats. Their efforts, however, are being undermined by the inefficiencies within the judicial system.
Despite the military’s successful operations, such as “Operation Radd-ul-Fasaad” and “Operation Zarb-e-Azb,” hundreds of terrorists captured during these efforts have been released by the courts. The reality is grim: terrorists often exploit legal loopholes, gaining relief and rejoining their networks, perpetuating the cycle of violence. Between 2020 and 2023, 6,550 terrorism-related charges were brought forward, yet only 774 individuals were convicted, a mere 11%. Worse, many convicted terrorists have had their sentences overturned on appeal, further eroding public confidence in the justice system.
Delayed Trials: Who Benefits?
The delays in terrorism trials are particularly troubling. The Anti-Terrorism Act was initially implemented to alleviate the burden on the courts, ensuring that each anti-terrorism court handled only one case at a time. However, after a 1999 amendment broadened the definition of terrorism to include other crimes, the courts have been overwhelmed. Today, 91 anti-terrorism courts operate across the country, yet cases continue to drag on for years.
In 2023 alone, terrorism cases saw a staggering 121% increase in pending cases. The inefficiencies within the judicial process mean that terrorists often benefit from prolonged trials, gaining time to exploit legal gaps. Balochistan leads with the highest percentage of pending terrorism cases, followed by Khyber Pakhtunkhwa and Sindh. These delays, coupled with the reliance on witness testimony and the frequent lack of substantial evidence, often lead to the acquittal of dangerous individuals. Between 2020 and 2023, 911 terrorists were acquitted due to insufficient evidence.
Military Courts: A Solution for Swift Justice?
Given the dismal performance of civilian courts in handling terrorism cases, the role of military courts has become increasingly important. Established under the National Action Plan, military courts have played a crucial role in delivering swift justice where the conventional judiciary has faltered. Yet, political affiliations within the judiciary have led to a “stay order” on military courts, halting their proceedings and delaying crucial terrorism trials.
The public’s frustrations are palpable: terrorists and target killers are arrested, only to be released due to legal technicalities. If Pakistan’s judiciary were truly effective and impartial, these criminals would face justice. However, the frequent acquittals and the release of hardened terrorists indicate that the system is failing. It is imperative that the stay order on military courts be lifted, allowing them to resume hearings and deliver swift, decisive justice. Only then can terrorism be curbed effectively.
Reforming the Judiciary for a Safer Pakistan
In my view, Pakistan’s judiciary is at a critical crossroads. The internal divisions within the Supreme Court, combined with the glaring inefficiencies in prosecuting terrorism cases, pose a serious threat to both the rule of law and national security. The establishment and continuation of military courts are vital to ensure that terrorists face timely and fair punishment. The current delays not only undermine justice but also embolden the forces that threaten Pakistan’s stability.
The judiciary must return to objectivity and resolve its internal conflicts privately, while ensuring that terrorism cases are handled with the urgency they deserve. The future of Pakistan’s democracy and national security depends on a functioning, impartial judicial system. The time for reform is now.
