Outline:
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
o Conclusion
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.