How to ensure Independence of Judiciary in Pakistan

Presented to: Sir Ahmad Raza Khan

Presented by Hassan Nasir -------738 B.A. (Hons.) GCU Lahore.

Table of Contents: I. II. III. IV. V. VI. VII. Introduction Meanings of Independence of Judiciary The rationale behind independence of judiciary Pakistans Judiciary and its establishment Judicial independence under the Pakistan Constitution Safeguards stemming from independence of judiciary Judicial activism and Ways to ensure independence of Judiciary in Pakistan

I.

Introduction:

There are certain basic institutions within every state which need to function properly and independently in order to ensure the stability of the state. One of the most important of such institutions is an independent Judicial System. In my opinion, the independence of judiciary poses the notion that the judicature organ of a state is free to adjudicate upon the matters placed before it and to deliver its judgments and decisions without fear and bias and be in accordance with the law of the land and dictates of the constitution. The commonly floated phrase independence of judiciary itself is such a point on which I would like to duel or argue as lots of questions regarding it arise in my mind. The first thought that comes to my mind is that whether judiciary in Pakistan is really not independent? If so, what are the forces, institutions or elements in the socio-political setup and power structure of Pakistan which curtail and enslave this organ? The independence of the judiciary was promised since the early days of Pakistan when the constituent assembly passed the Objectives Resolution in 1949, which was moved by Liaquat Ali Khan, the then Prime Minister of Pakistan. The documented resolution clearly stated that the independence of the judiciary shall be fully secured. I will propose an all-round view of the judicial system prevalent within Pakistan, the establishment of courts, meanings of independence of Judiciary, ways to ensure its independence as well as comment on Judicial Activism in Pakistan.

II.

Meanings of Independence of Judiciary:

One of the cardinal principles of a democracy is the concept of an Independent Judiciary. An ideal and independent judiciary would mean that all the components of a judicial system, including the Supreme Court, would be free from any sort of external and exertive pressures, undue intervention and compulsion either direct or indirect i.e. brought about by other

institutions, colleagues, superiors or any third parties outside the judicial system. The judges would not be bound or compelled by any external factor to give a judgment against the law and would be free to decide the cases brought before them on the basis of law and their conscience. A number of legal instruments elaborate the importance of judicial independence such as: The universal declaration of human rights (article 10), the international covenant on civil and political rights (article 14), the Vienna declaration and program for Action (1993: paragraph 27), the International Bar Association Code of Minimum Standards of Judicial Independence (New Delhi: 1982), the Universal Declaration on the Independence of Justice (Montreal: 1983) and so forth.

III.

The rationale behind independence of Judiciary:

The concept of Independence of Judiciary within a Federal state emerges from the logic of federalism. Ever since the beginning of the history of legality, the courts are bound to act as interpreters of the law and the arbiters between not only citizen and citizen but also between State and citizen. All the rights guaranteed by the constitution are rights against the State and thus the judiciary has been assigned by the Constitution very important and delicate role to play, namely, to ensure that none of the organs of the State or the Government functionaries acts in violation of any provision of the Constitution or of any other law and because of the above nature of work entrusted to judiciary it was envisaged in the Constitution that the shall be independent. Therefore, judicial independence is necessary within a State to give the citizens a chance to fight, on right, against the mighty State.

IV.

Pakistans Judiciary and its establishment:

The System: There are distinctively two components of the Judiciary in Pakistan which are as following: a) The Superior Judiciary b) The Subordinate Judiciary The Superior Judiciary of Pakistan comprises of two courts, the Supreme Court and the High Courts. The Supreme Court comprise of a 17 judge panel which hears appeals from the High Courts, though the Supreme Court has no administrative supervision over the High Courts. The High Courts are located in each provincial capital of Pakistan and they cater to the appeals forwarded by District & Sessions Judges, members of the Subordinate Judiciary. The Subordinate Judiciary within Pakistan comprises of Civil Judges and Judicial Magistrates, lying at the base of the hierarchy. These judges are supervised by the Additional District & Sessions Judges or the District & Sessions Judges. The most superior of the Subordinate Judiciary are the District & Sessions Judges, located in each District of a province, who also supervise the Additional District & Sessions Judges, though the Additional District & Sessions judges are at the same hierarchical level.

The Superior Courts The District Courts

The Judicial System of Pakistan

Supreme Courts High Courts Addl./District & Sessions Judges Special Courts & Tribunals A hierarchical depiction of the Judicial System of Pakistan Civil Judges/Judicial Magistrates

A hierarchical depiction of the Judicial Systems is given above to clarify the structure of the system. In addition to these two basic Courts, there are a series of other courts such as the Federal Shariat Court, Labour Courts, Anti-Terrorism Courts, Accountability Courts and the special courts & tribunals. Establishment & Jurisdiction of Courts: It has been provided under article 175 of the constitution of Pakistan that there shall be a Supreme Court of Pakistan, a High Court for each province and a court for the Islamabad Capital territory and such other courts as may be established by law. Courts of Law mean the courts

which have been established by the virtue of statutes, which are known as District Courts or Subordinate Judiciary.

V.

Judicial independence under the Pakistan Constitution:

One of the basic principles of the Constitution of Pakistan is the independence of judiciary. The constitution states that it is the will of the people of Pakistan to establish an order and the independence of the judiciary shall be fully secured, as is seen in the part of the Constitution in Article 2A and in the provisions of the Part VII of the Constitution which elaborates the principle of independence of judiciary and in such a manner so as to ensure the independence of judiciary. The judiciary is, therefore, independent of the executive and legislature and has jurisdiction, directly or by way of review, over all issues of a judicial nature. Judicial independence, itself, is status-oriented as it focuses on the status of the court as well as the relation between the courts and the others, particularly the executive branch of the government. There are three core and distinctive characteristics of the judicial independence, which are as following: Security of Tenure Financial Security Administrative Security Article 175 clearly denotes that the judiciary, including the lower or subordinate judiciary as it is a part of the judicial hierarchy, is to be independent and separate.

VI.

Safeguards stemming from Independence of Judiciary:

This is in light of the independence of judiciary which provides the judges with a safe haven to exercise their judicial acts, within their jurisdiction or capacity, in the best interest of justice, even if the judge may have to commit an unlawful act, and he would not be liable to any

damages. The reason is not that judge has any privilege over others to make mistakes but that the judge should be able to do his duties with complete independence and freedom from fear. The Superior and the lower judiciary enjoy same level of immunity and protection and the reason for this protection is to ensure that the judiciary may be free in thought and would act judicially, for the sake of justice and law. The only condition in which a judge may be liable to any damages is that he would be acting unlawfully outside his jurisdiction but until and unless he is acting within his jurisdiction, he would not be liable to any damages.

VII.

Judicial Activism and Ways to ensure independence of judiciary in Pakistan:

With increased independence of the courts comes Judicial Activism which is essential and quite beneficial. The concept of Judicial Activism is that the courts start exercising more of their power and authority to review and adjudicate. We have seen in Pakistan that the Supreme Courts, after the independence of the Judiciary, have inclined more towards Judicial Activism, helped by the media reports regarding several issues like the issue of IPPs (Independent Power Producers) or that of the tariff of sugar or such cases of corruption against powerful politicians, etc. This would not have been possible if the judiciary had not been independent or judicially active. All that glitters is not gold and judicial activism, despite being good itself, has lead to judicial adventurism, which is not good as the judges exercise their powers more to gain fame from the masses and not in the interest of justice. The threat to complete independence lies within an independent system itself and the threat is none other than the lust for power and undue exercise of power to gain dominance and absolute power is a negation of rule of law and will lead to judicial despotism. Independence of judiciary can be ensured by avoiding such acts which conform to judicial adventurism and despotism in order to avoid any sort of confrontation with the other executive bodies of a State and judicial self-restraint methods should be adopted so as to avoid undue

interference with proceedings of the other bodies of a State. Unbridled judicial power and delayed dispatching of justice would render judiciary as dependent rather than being independent. Mechanisms, such as self-restraint and focusing on the real issues like dispatching of speedy and fluent justice to everyone under the rule of law, should be adopted as soon as possible and the only way to adopt these mechanisms successfully is to have an active participation of the Bar, the Civil Society and the Media as they have the ability to criticize the judgments by being vocal, without any fear of contempt. This is the only way that the judiciarys true independence will be achieved.

References:
Access to Justice in Pakistan by Justice (R) Fazal Karim. Building Judicial Independence in Pakistan a report by International Crisis Group (ICG), 10 Nov. 2004. Independence of the judiciary, Indonesian Experience A joint address by Prof. Dr. Bagir Manan, Chief Justice of the Republic of Indonesia and Mr. Iftikhar Chaudry, Chief Justice of the Islamic Republic of Pakistan. A special interview I conducted with Mr. Asad Imran, Civil Judge, Family Courts, Lahore How true judicial independence can be achieved by Ali Zafar, an article in the Express Tribune, published on 1st of May, 2012.