The Case in Brief
For decades, Pakistan's judiciary has been a focal point of national debate, alternately hailed as a last bastion of justice or condemned as an institution prone to overreach and internal strife. From landmark judgments to controversial interventions, its actions frequently dominate headlines, shaping political trajectories and public discourse. Yet, I contend that to view the judiciary's current travails as solely an internal judicial crisis is to fundamentally misdiagnose the ailment. What we perceive as a judiciary in constant flux, burdened by backlogs and accusations of overreach, is in fact a prominent symptom of a far more pervasive and debilitating condition: Pakistan’s chronic governance crisis. The judiciary, like a sensitive barometer, merely reflects the immense pressure building up due to a sustained failure of executive efficacy, legislative dynamism, and administrative accountability. Its perceived 'crisis' is less about its inherent flaws and more about its reactive nature to a state that struggles to govern effectively.
Judicial Overreach as a Symptom of Executive and Legislative Vacuum
One of the most frequent criticisms levelled against Pakistan's judiciary is its propensity for 'judicial activism' or 'overreach.' While such interventions can, at times, provide a much-needed check on executive excesses or legislative inaction, their prevalence in Pakistan speaks volumes about the systemic weaknesses of other state organs. When elected governments falter in delivering basic services, formulating coherent policies, or ensuring accountability, the judiciary often steps into the vacuum, ostensibly to protect fundamental rights or uphold the rule of law. This tendency is not unique to Pakistan but is amplified here due to a historically weak democratic culture and frequent disruptions.
Consider the proliferation of Public Interest Litigations (PILs) that see the Supreme Court dictating policy on everything from the price of sugar to the construction of dams, environmental pollution, or the quality of public amenities. While the intent might be noble, such interventions invariably blur the lines of separation of powers, diverting the judiciary from its core function of adjudicating disputes and interpreting laws. These are, fundamentally, policy decisions that should be formulated and implemented by a robust, accountable executive and scrutinised by an effective legislature. The judiciary only ventures into these domains because the executive and legislative branches have either abdicated their responsibilities, demonstrated chronic inefficiency, or succumbed to corruption.
As observed by Justice (Retd.) Jawwad S. Khawaja in a 2017 lecture, "When other institutions fail to perform their constitutional duties, the public naturally turns to the judiciary. But this places an undue burden on the courts and fundamentally distorts the constitutional balance." This sentiment underscores the reactive nature of judicial activism, rather than it being an unprovoked assertion of power.
The consistent low rankings of Pakistan in international governance indicators further buttress this argument. According to the World Bank's Worldwide Governance Indicators (WGI) 2022, Pakistan scores in the bottom quartile for 'Government Effectiveness' and 'Control of Corruption.' This indicates a pervasive lack of state capacity, bureaucratic inefficiency, and a struggle against graft that permeates the executive branch. When the apparatus designed to govern is so consistently weak, it creates an irresistible gravitational pull for other institutions, including the judiciary, to step in and try to fill the void. This reactive overreach, rather than being a sign of an overzealous judiciary, is a stark indicator of a state struggling to maintain functional governance across its primary branches.
Institutional Decay and Ineffectiveness as a Reflection of Broader State Capacity Issues
Beyond the realm of judicial activism, the internal challenges faced by the judiciary – staggering case backlogs, slow justice delivery, inadequate infrastructure, and allegations of corruption – are often presented as proof of its inherent dysfunction. However, a deeper analysis reveals that these issues are not isolated to the judiciary but are symptomatic of a broader institutional decay and a pervasive lack of state capacity that afflicts almost every public sector institution in Pakistan.
The sheer volume of pending cases is alarming. According to a report by the Law and Justice Commission of Pakistan (LJCP) in 2023, over 2.2 million cases are pending in various courts across the country. While this points to a need for judicial reform, it also highlights the systemic pressures on the entire justice delivery chain. Is it solely a failure of judges? Or is it also a failure of the police to conduct thorough investigations, prosecutors to build strong cases, and the executive to provide adequate resources for judicial expansion and modernisation?
Consider the chronic underfunding of the justice sector. According to the Ministry of Finance (various budget documents), the allocation for the justice sector in Pakistan typically remains less than 1% of the national budget, significantly lower than developing country averages, which often range from 2-4%. This meagre allocation translates into insufficient courtrooms, outdated technology, a scarcity of support staff, and a judiciary that struggles to attract and retain top talent due to poor remuneration and working conditions. These are not judicial failures per se, but administrative and budgetary failures that stem from broader governance priorities and resource allocation decisions made by the executive and legislature.
Furthermore, the efficacy of judicial decisions often hinges on their implementation by the executive. A court verdict, however sound, is merely ink on paper if the relevant government department or agency fails to act upon it. The frequent non-implementation of court orders, particularly in matters involving powerful individuals or state entities, demonstrates a broader disregard for the rule of law across the entire governmental apparatus. This highlights a critical breakdown in the chain of accountability and enforcement, where the judiciary's efforts are undermined by a lack of political will and administrative capacity elsewhere. The judiciary's struggles are thus intertwined with, and exacerbated by, the systemic weaknesses of the broader governance framework.
Addressing the Counterargument
Many would argue, and justifiably so, that the judiciary is indeed complicit in its own crisis. They point to the opaque system of judicial appointments, particularly for superior courts, which often lacks transparency and is perceived as politicized. Instances of alleged judicial bias, the selective application of law, and the occasional indulgence in internal power struggles undeniably erode public trust and contribute to the institution's woes. The slow pace of justice, often exacerbated by frequent adjournments and archaic procedural norms, is also a valid criticism that cannot be entirely offloaded onto other institutions. These internal shortcomings are real and demand urgent reform.
However, even these internal flaws are inextricably linked to and exacerbated by the overarching governance crisis. An opaque appointment process, for instance, is not unique to the judiciary; it mirrors similar challenges in appointments across various state-owned enterprises, regulatory bodies, and civil service positions, where merit often takes a backseat to patronage or political expediency. The lack of a robust, independent judicial commission with truly diverse representation and transparent criteria is itself a failure of legislative foresight and executive commitment to institutional strengthening.
Moreover, if the executive and legislature were consistently strong, effective, and accountable, the judiciary would find fewer opportunities or less justification to venture beyond its traditional remit. A state where policy is robustly debated, laws are diligently enforced, and corruption is genuinely tackled would naturally reduce the pressure on the judiciary to act as a primary corrective force. The internal weaknesses of the judiciary, while needing direct address, are amplified and often triggered by the external environment of poor governance. It is a vicious cycle: weak governance creates a vacuum, the judiciary steps in, gets overstretched and politicized, and its internal weaknesses become more pronounced, further undermining the overall governance framework.
Conclusion
The notion that Pakistan's judiciary is in crisis is undeniable, but the assertion that this crisis is fundamentally a symptom of a deeper, systemic governance failure is crucial for any meaningful path forward. We must move beyond the simplistic narrative of blaming individual judges or specific judicial decisions. Instead, we must recognise that the judiciary, like all state institutions in Pakistan, operates within an ecosystem defined by weak executive capacity, legislative inertia, and a chronic deficit of accountability and rule of law. Its overreach is often a desperate attempt to fill voids created by others, and its internal inefficiencies are frequently compounded by a broader state apparatus that fails to provide adequate resources, enforce its orders, or uphold its sanctity.
True judicial reform, therefore, cannot occur in isolation. It demands a holistic approach to governance reform that strengthens the executive's capacity to govern, empowers the legislature to legislate and oversee effectively, and establishes transparent, merit-based accountability mechanisms across all state organs. This includes investing significantly more in the justice sector, modernising court infrastructure, reforming police investigation methods, and ensuring that executive branches respect and implement judicial pronouncements without delay. Only when the foundational pillars of governance – the executive, legislature, and bureaucracy – are robust, responsive, and accountable will the judiciary be able to revert to its primary role, shedding the burdens of policy-making and administrative oversight that currently weigh it down. Pakistan's journey towards a truly functional state hinges on this comprehensive understanding: rectify the governance crisis, and the judicial crisis will begin to resolve itself. Without addressing the root cause, we will remain trapped in a perpetual cycle of institutional blame games, with the promise of justice and good governance remaining an elusive dream for its citizens.
