Independence of Judiciary
o Introduction and short comparative review of world judicial setups
o An analysis of independence of Judiciary in Pakistan
o Its impact on state and society.
o Current bright scenario of judicial independence and constitutionalism.
o Factors enslaving judiciary
o Factors paramount essential for independence of judiciary
Man is social animal who wants and needs societal life which is interdependent. This view is expounded by both Socrates and Imam Al-Ghazali in their respective theories regarding nature of man. He interacts with his society members that give rise to mutual disputes, different crimes and general violation of rights besides good deeds. In order to purge the society of these criminal acts and maintain its just, healthy and balanced fabric an institution of independent judiciary ought to be there. By having an independent judiciary it will serve as a custodian of human rights, provide means for rule of law not man, enable man to feel protected and served. Countries of the world, therefore, Endeavour to have in practice an independent institution of judiciary. After analyzing different judicial systems of the globe it can be revealed that there are both cases of success and failure. United States of America and United Kingdom, for instance, are the well known countries that have in comparison, far succeeded to maintain independence of judiciary. People can get justice whenever their rights are violated. On the contrary, the Muslim world has failed to come to the expectation and needs of the people in imparting justice to the citizens. In fact mostly the judicial structure is influenced. Like other countries Pakistan too did little to have an independent judiciary in order to give independent and impartial justice to the people.
An institution of judiciary plays a great role in a government. It protects the civic rights of citizens of a state; it protects and interprets the constitution; it investigates corruption cases; it ventilates the grievances of; last but not the least it provides dispassionate justice to all and sundry. All these functions the pillar of judiciary plays if it is independent. Given this, are these functions emanated from judiciary in Pakistan are an important question.
Since coming into being restrained judiciary used to prevail over the country and an independent one. As a result, it remained an incomplete task that brought ill consequences for the state and society. The nation has witnessed this regrettable situation right from top to bottom during the course of history. Numerous instances can be cited to substantiate this fact. Supreme Court of Pakistan could not declare null and void the first illegal dissolution of the National Assembly by the then Governor General. Onwards Judiciary lacked independence, and perhaps the will, to bring to justice the makers of coup de’ Tates and perpetrators of constitution. Takeovers were declared legal under the garb of ‘doctrine of Necessity’. It in certain cases gave legal cover to the prime acts of take over. As when General (R) Pervaiz Musharraf by dint of his unlimited powers took over on October 1999, later on SC bench not only announced its verdict in his favour but also mandated him to alter the constitution at his will. It was the irony of time that a person became both chief executive and chief legislature. In fact, Pakistan’s 62 years short constitutional history is full of more or less like these acts of judicial containment and uncontitutionalism.
When at the top level judiciary is non-independent to such an extent how can it is independent at subordinate level. At the bottom people have generally suffered injustice. Seeking justice from court of law has become an expensive affair. When the people to whom injustice is done are in quest of seeking justice face hard ship in the process. Given the general trends in the entire process of trail, courts of justice at different level appear to have badly influenced. Politicians, officers, businessmen, influential people such as land lords, khans, waderas, nawabs and sardars prove a stumbling block in way to impartial and due justice. In the process naturally the aggrieved party suffers injustice. In light of such bleak scenario at both upper and lower levels ultimate decisions are affected, indicating lack of independence of judiciary in Pakistan.
These sorry affairs have left a deplorable impact both at state and society levels. At state level rule of law, constitutionalism and democracy have been largely received setbacks. Dictatorship raised its ugly head, disparity and a general sense of lack of legal protection. Pessimism has prevailed culminating in suppression of independent voices, opinions and thoughts that are the vertebral column of basic rights, rule of law and democracy. Freedom of press and media is influenced and country’s picture is drawn in bad color abroad. Moreover, society is also influenced: common man is suffered which has generated in him disparity, hopelessness n the society and crime ratio increased. Because, when people are menaced by the judicial system in a country they fuel enmity and take the laws of the land in their own hands. This results in general aggravation of the social order which is then ripe to unhealthy environment. Because, law and order situation of the country gets disturbed and socio-economic progress starts declining.
Now after having such an impact asking a logical question is: what are those factors which stop judiciary from playing such independent role? They are, firstly, absence of democracy in a country. Pakistan is unfortunately ruled by the army most of the time. Four military generals came and put judiciary to task. It’s independent character was damaged. Secondly, lack of a sacred constitution which was adopted and altered by the generals to secure their interests. Thirdly, lack of merit-based, independent and upright judges. Fourthly, lack of separation of powers as well as checks and balances. Fifthly, Western influence for serving their vested interests in Pakistan. The concept of rights awareness and prevalence of local traditions and customs.
Though during past judiciary played a subservient role and succeeded little to render independent justice to the people which in return badly influenced the things due to certain factors it is very delightful to see that presently judiciary has gained considerable independence. For the present independent character of judiciary October 2, 2007 proved a defining day. Before this when the presidency put charges against the Chief Justice the case was sent to Supreme Judicial Council for decision under Article 209. The decision favored the CJ. As the time rolled by, General (R) Musharraf sacked 61 judges by promulgating emergency who replaced them by PCO judges. However, over the times legal fraternity sacrificed a lot by taking pains of in launching successful rallies and protests amid resistance. It gathered more force when political parties and civil society also joined the cause for securing independent character for judiciary. The moment brought fruit when from the floor of assembly Prime Minister announced the restoration of the judges. Though later on some judges showed reluctance to be reinstated through the criteria set out by the incumbent government but all the judges ultimately got restored.
Now people have placed high hope on the judiciary to deliver justice to the who have suffered injustice for long. The cases pending for long needs to be decided in an impartial manner with speed to enable people receve justice. Because delaying justice is injustice also as people pass through the travails of hardship in the process of investigation, trail and decision. The newly announced judicial policy seems a positive step in the right direction. It needs to shoulder its responsibilities besides an environment to have its verdicts announced in an impartial manner. For creating the environment the following essentials needs to exist in the governing. Ain this regard it is mentionablr that the judiciary itself should take steps to preserve such environment sustain ably.
The first and far most essential ought to be democracy in the country. In democracy people voice does not go unheard. In a democracy the institution of judiciary is respected not underestimated. People can knock the door of justice with out any hindrance. In Western democracies such a setup exists. In this regard the precedents of Western judicial setup need to follow. For example in United Kingdom seeing justice is easy where courts of law discriminate no one on the basis of power, rank and status. It is said that in UK a clerk and Prime Minister are delivered justice on the same lines of procedure and consideration. Similarly, In the US judiciary is a very powerful institution. It can declare null and void any ordinance and congressional bill if wise judges find them to be in contrivance against law of the land through its power of judicial review. A citizen can access the court and seek justice. In America the Bill of Rights is held un-violated. People enjoy protection and liberty of life, property and honor. Similarly, there may be offered other such examples which substantiate that judiciary plays a very independent, unbiased and impartial role in the countries where democracy rules. Pakistan needs to follow suit of such independent judiciaries of the world.
Besides democracy another essential should be a secured constitution. As a constitution is a written document dealing with the powers and jurisdiction of branches of the government. In it is registered how legislature, executive and judiciary will work in there specific areas. In such a way no confrontation environment is there as every institution tries to act according to laid down principles in the constitution. So there should be a sacred constitution. In countries where the citizens enjoy the fruit of independent judiciary is due to the fact that there law rules not man.
In addition to democracy, safeguarded constitution, there should also be separation of powers. The framers of the US constitution were prudent enough to introduce the principle of separation of powers, a well known theory expounded by French philosopher, Montesquieu. This principle along with checks and balances work satisfactorily in America. If such a system is workable in Pakistan it should be introduced- certain modifications may be incorporated in the principle before it is employed as political environment of the two countries differ. This separation of powers and checks and balance constitutional system should aim at avoiding confrontation among executive, legislature and judiciary, define constitutional area of jurisdiction in a balanced manner and make the institutions effective and responsible. This will serve the national cause of judicial independence. In short every possible result-bound step be taken to enable an environment wherein the shackles enslaving judiciary are broken and transform it into a people serving independent institution.
This world ought to free from injustices meted out to people by providing judicial means to give justice by all the countries. This will put down injustice, prosper nations and build their trust. Because many peoples suffer injustices particularly in poor and developing world. The majority of people in Pakistan like other countries has remained the sufferers of the dieses of injustice due to the lack of independent institution of judiciary. During the course of history judiciary received serious blows which made it unresponsive to protect constitution, bring the culprits to justice, take suo moto actions to immediately address anomalies, interpret the constitution , reign in the access of powers by other institutions, mitigate the people grievances and protect the basic rights of people. In the availability of these judicial responsibilities and functions lies a considerable success of Pakistan in different aspects. This is possible only when independence of judiciary is ensured constantly. For this heart applying efforts and unpopular decisions need to be taken. However, given the present picture of vital developments for judicial independence, it can with reason be hoped that judiciary is fast growing towards its meaningful independence but all possible means be harnessed to ensure judiciary stays its present course.
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