Chapter I: INTRODUCTION.
Independence of the judiciary has become a phrase as judiciary
without
independence
is
inconceivable.
In
the
words
of
a
jurist,
1
‘independence is divine virtue of a judge’. Judicial independence means a
judiciary that impartiall y and fairl y applies the facts of a case to the
applicable law; a judge’s abilit y to interpret and appl y the laws without
fear or favor. The Supreme Court of Pakistan has given a very
comprehensive definition to the phrase ‘Independence of Judiciary’ which
states:
a) That every judge is free to decide matters before him in accordance
with his assessment of the facts and his understanding of law
without improper influences, inducements or pressure, direct or
indirect, from any quarter or for an y reason; and
b) That the judiciary is independent of the Executive and Le gislature,
and has jurisdiction, directl y or b y wa y of review, over all issues of
the judicial nature. 2
The importance and need of independence of judiciary in modern
state can hardl y be over emphasized as the role of the court has been
changed. In the earlier period of history, the Court was to settle disputes
mostl y of civil nature between private citizens or to determine the guilt of
the persons accused of offences and the punishment to be imposed upon
them. One of the essential functions of the modern Court is as the arbit er
of disputes between the states and the individuals. Due to the multifaceted
function of the government, it is acquiring more and more powers.
Acquisition of most powers b y an y human institution including a
government which too operates through a human agency is alwa ys
connected with the danger of abuse of power. The liberties of the
individuals face real dan ger from the abusing of powers b y the
government machinery. The universally known quote of Lord Acton,
1
2
M. Dilawar Mahmood: “Independence of Judiciary”, PLJ Magazine 1993, P-2.
Govt. of Sindh Vs Sharaf Faridi, PLD 1994, SC – P-105.
“power tends to corrupt and absolute power tends to corrupt absolutel y” 3
is true even today a s was in past and i t applies to every nation, every
government and every societ y. It, therefore, has become essential that
most of the government’s power in modern societ y must be cushioned
with safeguards for an individual’s rights.
Consequentl y the judiciary must be rested with power to ensure
the protection of those ri ghts of the individuals and to see that the powers
by the government are not abused and such powers are exercised in
accordance with the laws enacted for the purpose. As Alexander Hamilton
pointed out limitation on government “can be preserved in practice in no
other wa y than through the medium of courts of justice…..without this all
reservations of parti cular rights or privileges would amount t o nothing”. 4
This vital jurisdiction of the court can effectivel y and properl y be
exercised by an independent judiciary. Independence of judiciary has now
become to be accepted as an essential trait of free democratic societ y. A
former judge of Indian Supreme Court has very well said, “independence
of the judiciary is the most vital and indispensable condition for keepin g
alive and meanin gful the rights enshrined in the constitution. Unless you
have independent courts, you might as well erase and repeal that part of
the constitution which provides for fundamental rights." He further
elaborates, “Rule of law in its turn depends upon the existence of
independent courts. It is indeed difficult to visualize a trul y democratic
state which does not provide for the independence of judiciary, for it is
the presence of an independent judiciary which guarantees the rule of law
and ensures that the rights of the minorities and those in opposition,
guaranteed b y the constitution, shall not be trampled upon by the majorit y
and those in seats of power without such independence, the courts would
3
www.phrases.org.uk/meanings/288200html
Alexander Hamilton ‘The Federalist No: 78’ quoted by the Hon Judge (Retd) Clifford Wallace,
‘Resolving Judicial Corruption While Preserving Judicial Independence: Comparative Perspectives’
California Western International Law Journal, 28 p-341, 1998.
4
not enjoy or deserve to enjo y the confidence and faith of the people”. 5
Justice Clifford Wallace is of the same view that independence of
judiciary is vital for preserving a s ystem of libert y and rule of law. 6
Moreover,
judicial
independence
has
been
recognized
as
a
universal human ri ght: “Every one is entitled in full equalit y to a fair and
public hearin g b y an independent and impartial tribunal in determination
of his rights and obligations and of any criminal charge against him.” 7
The seventh UN Congress on the prevention of crime and the treatment of
offenders, held at Milan in 1985, formulated and adopted 20 Basic
Principles to assist the member states in their task of securing and
promoting the independence of the judiciary. These Basic Principles on
Independence of Judiciary were endorsed by the General Assembl y
Resolutions 40/146 of December 13, 1985. The first principle declares
that “the independence of the judiciary shall be guaranteed by the state
and enshrined in the constitution or the law of the country. It is the dut y
of all governmental and other institutions to respect and observe the
independence
of
the
judiciary”. 8
Article
14
(1)
of
International
Convenient on Civil and Political Rights reiterates the independence of
the judiciary in these words: “All persons shall be equal before the courts
and tribunals. In the determination of any criminal charge against him or
of his rights and obligations in a suit at law, everyone shall be entitled to
a fair and public hearing by a competent, independent and impartial
tribunal establi shed by law”. 9
International Commission of Justices emphasized on the principle
of independence of judiciary in its New Delhi deliberations in January
1959, by stating that “an independent judiciary even though appointed by
the Head of the State, is an indispensable requisite of a free societ y under
5
Justice (Retd) H.R. Khanna, ‘Judiciary in India and Judicial Process’ pp- 19-20.
Supra note 52.
7
Universal Declaration of Human Rights 1948, Art. 10 at www.un.org/overview/rights.html
8
UNO’s Basic Principles on the Independence of Judiciary at www.unchr.ch/html
9
At www.unchr.ch/html/menu3/b/a_opt.htm
6
the rule of law”. 10 So an independent and impartial judiciary is universall y
recognized as a basic requirement for the establishment of the Rule of
Law, an inevitable and inseparable ingredient of a democratic and
civilized wa y of life. It is, now, not onl y domestic requirement but an
international obligation also of the governments to provide and preserve
the independence of judiciary.
Independent judiciary is not onl y essential for protection of
fundamental rights but it is in itself a fundamental right. “The right of
access to impartial and independent court/ tribunal is a fundamental ri ght
of every citizen. The existence of this right is dependent on the
independence of judiciary” was the view of the Full Bench of the Sindh
High Court in the case of Sharaf Faridi, 11 which was upheld by the
Supreme Court of Pakistan in the Al-Jehad Trust case, 12 commonl y known
as “Judges Case”.
Thus the need for judicial independence is not for judges or the
judiciary per se, but for the people, so that the Rule of Law is ensured,
the rights and liberties guaranteed by law are protected, the abuse or
misuse of powers b y the government machinery is checked, political
victimization is disallowed and so on. It is a fundamental principle that no
judiciary can function effectivel y unless their tenures and conditions of
services, their salaries and privileges are guaranteed either b y constitution
or statute. To check unauthorized exercise of powers effectivel y judges
must be beyond the reach of those who would transfer or remove them
because of their decision. Similarl y judges must have legal immunit y for
their judicial action being called in question by an authorit y other than a
judicial authorit y.
An independent judiciary is sine qua non for an y democratic polit y.
It is, nevertheless, true that judicial independence has come to be
10
Quoted by Justice (Retd) Anwar-ul-Haq, ‘Revolutionary Legality in Pakistan’, p-105.
PLD 1989 Karachi, P- 404.
12
PLD 1996 – SC- P-324.
11
recognized as essential for democratic development and stabilit y. 13
Constitutional supremacy presupposes the existence of a strong neutral
organ, which would be able to prevent unconstitutional onslaught b y the
executive and le gislature. When democrac y is in danger or the executive
tramples rule of law, then judiciary, people expects, will stand with
vigorous effort to save democracy and rule of law though the deposed
executive or the dissolved legislature do not come forward.
The judiciary in Pakistan does not have an edifying history. Most
jurists agree that its weak-kneed responses to the excesses of the
executive earl y in the country’s history have gone a long wa y in impeding
the progress of democrac y in Pakistan as well as erosion of the people’s
confidence in the judiciary. Its crucial judgments onl y tended to serve the
despots and the usurpers as license for even worse excesses.
In the words of Hamid Khan, “the independence of the judiciary has
been a myth rather than a realit y. Successive governments and members of
the judiciary have caused incalculable harm to the institution. The role of
the judiciary has at times been relegated from that of an orga n of the state
to that of a department of government. It has been the obj ect of
manipulation b y the executive and is perceived by the people as docil e.” 14
The main issue to be criticall y examined b y this stud y is wh y the
independence of judiciary could not be “ full y secured” as envisa ged by
the Objectives Resolution of 1949 and what are the factors/actors
responsible
for
keeping
the
judiciary
under
pressure/influence,
in
violation of the Objectives Resolution? The Objectives Resolution of 1949
that has been made a substantive part of the Constitution of Pakistan by
art icle 2-A, 15 full y secures the independence of t he judiciary. But the
Chief Justice Sajjad Ali Shah feels no hesitation in saying that “in
Pakistan the Judiciary alwa ys remained under the pressure of the
13
Hina Jilani: “Human Rights and Democratic Development in Pakistan.” P-77.
Hamid Khan, “Constitutional and Political History of Pakistan” P- 876.
15
The Objectives Resolution of 1949 remained Preamble to all Constitutions of Pakistan. It was made a
substantive part of the present Constitution by General Zia, adding a new article 2-A by Presidential Order
no: 14 of 1985.( See the Constitution of Pakistan 1973 by Justice ® M. Munir. P- 168)
14
Executive and the Government.” 16 Hina Jilani, while discussing the
judicial s ystem of Pakistan, has come to the conclusion that “failure of
the judicial s ystem to dispense justice has eroded respect for the rule of
law. This has led to a tendency in the general public to circumvent the
law. The perception that the judicial system does not work has become
common, and is used to justify excess by the executive branch of the
government.” 17
The public confidence in the independence of judiciary is perceived
by many to be in dangerous state of decline, so much so that once the
President
confidence
of
Supreme
even
unprecedent ed
Court
Bar
Association
in
the
Superior
move,
the
then
Judiciary
President
of
showed
of
his
Pakistan.
Supreme
lack of
In
Court
an
Bar
Association, Hamid Khan, appeared before the apex court of Pakistan
(Supreme Court) in the review petition relating to the appointment of
Judges in the Supreme Court and filed a “Statement at Bar”. This was
filed on behalf of the Supreme Court Bar Association and also represented
the views of other bar associations, including the Pakistan Bar Council.
The President of the Bar submitted that the y had no confidence in the
independence of the Supreme Court in its present composition and
therefore the association refused to argue the review petition before the
court. 18
No country can realize the ideal of stable and prosperous polity
without an efficient and independent judiciary. Pakistan has been lacking
in this area since its independence. The role of judiciary in Pakistan in up
holding the Constitution and rule of law has not been impressive. That is
why there is not only frequent viol ation of the constitution but general
decline in the integrity and performance of the judiciary, which ultimatel y
affect every segment of the soci et y. A critical anal ysis of the dynamics of
16
Chief Justice ® Sajjad Ali Shah: “Law Courts in a Glass House” P- 686.
Hina Jilani: “Human Rights and Democratic Development in Pakistan.” P-156.
18
“Dawn” November 7, 2002
17
the judiciary will be helpful in identifying the various incidents and
factors and their consequences for the independence of the judiciary.
This study is limited to examine the independence of superior
judiciary in Pakistan which includes the Supreme Court, the High Courts
and the Federal Shariat Court. Thou gh district courts (lower courts) are
excluded from this study, yet where a reference to them seems necessary,
proper attention is given to them.
The statement that ‘the roots of the present lie deep in the past’ is
also true in the case of the development of the judicial s ystem of Pakistan.
The judicial history of Pakistan is full of surprising and shocking events.
That is why chapter II of the Thesis tells about the historical background
of the judicial s ystem and independence of judiciary in Pakistan. This
chapter covers the judicial history since the foundation of the judicial
s ystem in pre-partitioned India by the British till December 2007. Though
this research is limited to stud y the factors undermining independence of
the judiciary in Pakistan, yet all relevant issues are referred to in the
historical background. This chapter briefl y narrates the development of
the judicial organization, making and unmaking of several constitutions of
Pakistan, imposition of martial laws, transition periods of democracy,
dissolutions of assemblies, extending and curt ailing the judicial powers of
the courts, appoi ntment and removal of judges of the superior courts etc.
Chapter III describes the organization of the judiciary in Pakistan.
Though this research is limited to superior judiciary, yet the whole
organization of the judicial s ystem is provided in this chapter. The powers
and jurisdictions of the various courts are discussed in chapter IV.
One jurist says “when the integrit y and independence of the
judiciary are at st ake, all other questions become unimportant. When the
sappers and minors are at work, undermining the foundations of our
judicial structure, it is idle to discus questions of details of construction
or reconstruction of the edifice.” 19 The main theme of this research is to
19
Muhammad Anum Saleem: “Saga of Judicial Independence in Pakistan” PLD Journal 2003. P- 41.
cri ticall y discuss and examine all those factors which undermine the
independence of the judiciary in Pakistan. Four chapters of this Thesis
(from chapter v to viii) deal with those factors/actors which made inroads
in the independence of the judiciary. This research covers onl y those
factors which are detrimental to the independence of the judiciary. There
are certain other factors like strong public opinion, independent and
responsible media etc which ma y be helpful in improving and mai ntaining
independence of the judiciary but the y are not included in this study.
Hence such factors are not detrimental to the independence of the
judiciary; so the y are excluded.
The factors affecting the independence of the judiciary may be
classified into four groups, namel y structural factors affecting the
independence of the Judiciary; judicial commitment to independence of
the judiciary; role of the lawyers in protecting and preserving the
independence of judiciary; and the impact of the executive on the
independence of judiciary. Chapter V examines the structure of the
judiciary, the relevant provisions of the Constitution, the procedure of the
judges’ appointment as well as their removal, le gal protection and
immunit y avail able to judges and the process of judicial accountabilit y in
Pakistan. Chapter VI discusses the judges’ commitment to independence
of the judiciary in Pakistan. This study includes role of the judiciary
during constitutional and le gal crisis of Pakistan, collective role of the
judges, integrit y and character of the individual judges. Chapter VII
studies the culture of the legal profession and its impact on the
independence of the judiciary. This study includes the general relation
between bench and bar, importance of bar for judicial independence,
Pakistani bar’s role in protecting and preserving independence of
judiciary in Pakistan
The powerful executive is alwa ys the bi ggest impediment in the wa y
of achieving judicial independence in Pakistan. The impact of the
executive, both military and civilian governments, on the independence of
the judiciary is examined in chapter VIII which covers several aspects of
this topic such as the executive role in the appointment and removal of the
judges,
harassment
and
intimidation
of
the
judges,
executive’s
interference in the affairs of the judiciary, manipulation of the judges for
getting favorable decisions, curtailing the powers and jurisdictions of the
courts, the executive’s dishonor and disregard for the judiciary etc.
In the concluding chapter IX, on the basis of this study, the
impediments in the wa y of independent judiciary are identified, the
weaknesses in the judicial s ystem are pointed out and those constitutional
provisions and other relevant laws which are detrimental to judicial
independence are highlighted. Recommendations are presented to make
the “independence of the Judiciary fully secured” as envisaged by the
Objectives Resolution 1949.