Faheem Amir
No real democratic state can exist without the independence of the judiciary in the world. The judiciary is the sole guardian of the Constitution. It interprets legislation, enforces it through other institutions, protects the fundamental rights of citizens as enshrined in the constitution, and ensures the constitutional doctrine of separation of powers through institutional checks and balances between different organs of the state.
The judiciary collaborates with the legislative and executive branches to run the government system smoothly and effectively. It creates peace and harmony in the state by ensuring speedy justice and interpreting thorny issues in light of the constitution. It also checks the constitutionality of laws.
A constitution is the most sacred document upon which the ideological foundation of a state is raised. In other words, the constitution is the bedrock of a modern state, which guarantees a social contract between the state and its citizens by creating checks and balances between different institutions of the state. The constitution also ensures that the state should protect the fundamental and just rights of its citizens by setting limits on the authority and power of state institutions.
The Constitution of Pakistan ensures the independence of the judiciary by categorically stating in Article 2A that “the independence of the judiciary should be fully secured.” The independence of the judiciary creates the rule of law, ensures constitutionalism, protects fundamental rights, and promotes democracy in a country. The Supreme Court has pronounced in the Sh. Riazulhaq case that the independence of the judiciary is a fundamental tenet of the constitutional system of government.
The Supreme Court has also unambiguously stated in the Sharaf Faridi case that it is every judge’s responsibility to make decisions based only on the evidence and his own interpretation of the law, free from outside coercion or influence. The court further declared that the legislature and the executive branches are separate entities from the judiciary, which has its own autonomous existence.
To protect the rights of the people, Article 4 of the Constitution states that “to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan, in particular, no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law; no person shall be prevented from or be hindered in doing that which is not prohibited by law; and no person shall be compelled to do that which the law does not require him to do.”
The checkered political history of Pakistan manifests that the judiciary has failed to protect its independence and the fundamental rights of the people. The executive and legislative branches have repeatedly attacked its independence since the Federation of Pakistan v. Maulvi Tamizuddin Khan (1955) case, which gave birth to “the doctrine of necessity.”
The judiciary has been used to protect three martial laws, hang Prime Minister Zulfiqar Ali Bhutto, endorse the removal of Benazir Bhutto’s governments in 1990 and 1996, remove Nawaz Shaif from the premiership on alleged corruption charges, and then absolve him of all the charges of corruption.
It is also a regrettable fact that many judges’ role in upholding justice, the independence of the judiciary and the constitution has been very dubious and problematic in Pakistan. Judges like Chief Justice Muhammad Munir, Nasim Hasan Shah, Maulvi Mushtaq Hussain, Iftikhar Muhammad Chaudhry, Saqib Nisar, Judge Arshad Malik, and Judge Humayun Dilawar will always be remembered in negative words in the history of Pakistan. While taking an oath, a judge pledges: “That I will abide by the code of conduct issued by the Supreme Judicial Council; that I will preserve, protect, and defend the Constitution of the Islamic Republic of Pakistan; and that, in all circumstances, I will do right to all manner of people, according to law, without fear, favour, affection, or ill-will.” All the above-mentioned judges have blatantly violated their oaths and duties by indulging in corrupt, unconstitutional judicial activism, and undemocratic practices.
Even the Apex Court has declared that ex-PM Zulfiqar Ali Bhutto’s was denied a fair trial. Chief Justice Qazi Faez Isa stated, “We didn’t find that the fair trial and due process requirements were met.” In his ruling, Isa declared that there have been cases in the past in the country’s judicial history that created a public perception that “either fear or favour deterred the performance” of the judiciary. “We must, therefore, be willing to confront our past missteps and infallibility with humility in the spirit of self-accountability and as a testament to our commitment to ensure that justice shall be serving with unwavering, integrity and fidelity to the law,” he said. It took 44 years for the Apex Court to acknowledge its mistake. These kinds of controversial rulings have tarnished the sanctity of the judiciary and judges in the eyes of the people.
The letter written by six judges of the Islamabad High Court to the Supreme Judicial Council also endorses the fact that the judiciary is not independent in Pakistan. The judges wrote: “We are writing to seek guidance from the Supreme Judicial Council (SJC) with regard to the duty of a judge to report and respond to actions on part of members of the executive, including operatives of intelligence agencies, that seek to interfere with discharge of his/her official functions and qualify as intimidation, as well as the duty to report any such actions that come to his/her attention in relation to colleagues and/or members of the courts that the High Court supervises.”
The case is being heard in the Supreme Court and the people of Pakistan are hoping that the Apex Court will view the letter within the larger framework of fundamental rights guaranteed by the Pakistani Constitution under Article 4, rather than in isolation. The spirt of Article 4 also covers Articles 8 to 28. Moreover, the functioning of Articles 184(3) and 199 of the constitution is directly proportionate to the fulfilment of Article 4. The numerous court rulings also incorporate the Islamic concept.
The Apex Court has a very good chance to improve the judiciary’s image among the people by giving a verdict that clearly directs other institutions to work in their constitutional domain. This is the only way to establish the rule of law and the independence of the judiciary.
The writer is a former staff member who lives in the UK and is a member of Lincoln’s Inn. He can be reached at [email protected].
