Mr.

Justice Rana Bhagwandas Judge, Supreme Court of Pakistan

INDEPENDENCE OF JUDICIARY

The issue of independence of judiciary has been a subject of discussion at almost every conference where the jurists meet and discuss their problems. What keeps the issue alive, as a topic of reaffirmation and discussion is the fact that not withstanding the apparent consensus on the point that judiciary should be independent and free from all influences which detract or deviate the judicial mind from the path of rectitude, persistent misgivings exist about the future of the judiciary as an institution. Some feel, with considerable justification, that the all pervasive jurisdiction which the judicial arm of the State enjoyed under the 1956-Constitution with the Supreme Court at its apex has been considerably reduced. Besides, considerable political power has been concentrated in the executive without providing for a real counter-balance either in legislature or judiciary. What is more, in regard to important fields of social dispute jurisdiction of courts has been excluded, and numerous administrative tribunals have been created or have been provided for, to further reduce the already limited jurisdiction of Courts. It has been asserted with considerable force that the very process of fragmentation of judicial power and of vesting it in several tribunals has diminished the status and effectiveness of the entire judicial system. Some are disturbed by the fact that even in the fields open to judicial review, the relief ultimately granted often does not match even the existing legal powers. The courts, they assert, have been rather conservative in interpreting the scope of their powers, and have by judicial precedents avoided direct confrontation with the executive and thereby created a lot of hurdles in the way of a person who seeks nothing more than the enforcement of the legal mandate of the Constitution, that every person is to be treated in accordance with law and only in accordance with law. The injured parties, however, do not appreciate this view. When anyone approaches the courts of law, he merely asks the court to make sure that in the process of being dealt with for voicing political protest, he should be treated in accordance with the law ; no more no less. If people bring up grievances in political cases it is only because abuse is greater in that sector. The suffering that political protests entail today is far greater. And in any event why should it matter to the courts as to who are the parties in conflict before them particularly when they have sworn to do justice without fear or favour. No party in an Islamic State can be a favoured party, much less the State. Al Quran Surah Nisa 135 says: O, ye who believe, be maintainers of justice, bearers of witness for Allahs sake though it may be against your own selves or your parents or near relations, be he rich or poor. Allah is most competent to deal with them both, therefore do not follow your low desires lest you deviate, and if you swerve or turn aside then surely Allah is aware of what you do.

Pakistans judicial system is composed of a Supreme Court of Pakistan, a High Court for each province and, at the lower levels, Civil and District Courts for Civil proceedings, and Judicial Magistrates and Sessions Courts in the criminal system. There is a Federal Shariat Court and Special Terrorism Courts along-with a number of Tribunals.

The Supreme Court enjoys original Jurisdiction in every dispute between the Federal Government and the provincial Governments and appellate jurisdiction from judgments, decrees, final orders or sentences of a High Court. Jurisdiction is extensively detailed in the Constitution. Federal Shariat Court The Federal Shariat Court has the power to examine and decide if a law or its provisions comply with the injunctions of Islam. In addition, the Federal Shariat Court may call for, and examine the record of any case decided by any criminal court under any law relating to the enforcement of Hudood. Appeals against the decisions of the Federal Shariat Court are heard by a bench of the Supreme Court, known as the Shariat Appellate Bench.

The eight Muslim members of the Federal Shariat Court are appointed by the President for a renewable term of three years. The President has the power to (a) modify the terms of appointment of a judge, (b)assign a judge to any other office, (c) require a judge to perform such other functions as the President may deem fit.

The service rendered by the judges of the Superior Courts demands the highest qualities of learning and character. These persons can administer justice only, when they are men of high integrity having the character of stern stuff who will not bend before power, be it economic or political.

In a Constitutional Government, the judiciary plays an important role of interpreting and applying the law, and adjudicating upon the controversies between citizen and State, citizen and citizen and Federating units and the Federation.

In order to discharge the responsibility of this kind, the judges must be free from the interference of executive and legislature. An independent judiciary only, can deliver the administration of justice of the highest quality.

The appointment of judges of the High Courts, in Pakistan, is made by the President in consultation with Chief Justice of Provincial High Court concerned, Governor and the Chief Justice of Pakistan, whereas judges of the Supreme Court are appointed by the President in consultation with the Chief Justice of Pakistan. The advice of the Chief Justice is of prime importance because it is now held by this Court that in case the Executive does not agree with the recommendations of the Chief Justice it will record its reasons which will be justiciable.

The Constitution also provides that the President will act on the advice of the Prime Minister, which means that all these matters will be processed and placed before the President through and with the advice of the Prime Minister.

The power to appoint the judges of Superior Courts has been vested in the executive, perhaps for the reason that the Executive is responsible to the Legislature; it is accountable to the people who are the seekers of justice.

The Constitution of Pakistan provides for an independent judiciary though historically the independence has been affected adversely through different supra-constitutional measures like administering fresh oath under PCOs etc. Some judges even refused to take such oath. The International Commission of Jurists (ICJ) has been continually voicing its concern against such practice.

Art.2 of Seventh United Nations Congress on Prevention of Crime and the treatment of Offenders held at Milan from 26th August to 6th September 1985 and endorsed by General Assembly resolutions 40/32 of 29th November 1985 and 40/146 of 13th December 1985 states:

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 duty of all Governments and other institutions to respect and observe the independence of the judiciary.

The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter, or for any reason.

The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.

The principle of the independence of the judiciary entitles and requires the judiciary to ensure, that judicial proceedings are conducted fairly and that the rights of the parties are protected.

It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions. The Article 2 further states that: In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.

The term of office of judges, their independence, security, adequate remuneration and conditions of service, pensions and the age of retirement shall be secured by law.

Without prejudice to any disciplinary procedure or to any right of appeal or to compensation from the State, in accordance with national law, judges should enjoy personal immunity from civil

suits for monetary damages for improper acts or omissions in the exercise of their judicial functions.

In the United States, judicial independence has developed into a set of institutions that assure that judges decide according to law, rather than according to their own whims or to the will of others. The five components of judicial independence are: the constitutional protections that judges in the United States have, the independent administration of the judiciary; by the judiciary, judicial disciplinary authority over the misconduct of judges, the manner in which conflicts of interest are addressed and the assurance of effective judicial decisions. The components combine to assure an independent judiciary that is the basis for a society governed by the rule of law. George Washington claimed that the true administration of justice is the firmest pillar of good government, while Alexander Hamilton, in Federalist Paper No.17, maintained that the ordinary administration of criminal and civil justice.contributes, more than any other circumstance, to impressing upon the minds of the peoples affection, esteem, and reverence towards the Government.

The good that proper adjudication can do for the justice and stability of a country is only attainable, however, if judges actually decide according to law, and are perceived by everyone around them to be deciding according to law, rather than according to their own whim or in compliance with the will of powerful political actors. Judicial independence provides the organizing concept within which, we think about and develop those institutional assurances that allow judges to fulfill this important social role.

Canada has a level of judicial independence entrenched in its Constitution, awarding superior court justice various guarantees to independence under section 96 to 100 of the Constitution Act, 1867. These include right to tenure (although the Constitution has since been amended to introduce mandatory retirement at the age of 75) and the right to a salary determined by the Parliament of Canada (as opposed to the executive).

Thus, judicial independence is the doctrine that decisions of the judiciary should be impartial and not subject to influence from the other branches of Government or from private or political interests. In most cases, judicial independence is secured by giving judges long, and sometimes lifetime, tenure and making them not easily removable.

RECOMMENDATIONS

To stop deviations from the seniority rule in the appointment of High Court Judges to the office of Chief Justice, establish by statute a seniority rule for appointment from the High Courts to the Supreme Court, and when filling vacancies on the High Courts and Supreme Court, encourage female judges who are otherwise qualified and fit for appointment under the seniority rule. To eliminate the practice of not confirming additional Judges and of awarding Government assignments to retired Judges for two years post retirement; establish public audit of all members

of the superior judiciary and close family members to ensure that only statutory benefits are awarded and corruption is completely uprooted. To abolish the practice of selectively offering new oath of allegiance to Judges, and renounce publicly, the use of the judicial oath as a mechanism for purging the judiciary. Evolve adequate mechanism for appointment of Judges of Superior Courts strictly on merit, talent and after in-depth scrutiny of family background through a high powered Judicial Commission in a transparent manner providing for primacy to the opinion of the Chief Justice of Pakistan.

Absorb the anti-terrorism, accountability and other special courts into regular judiciary, jettisoning procedural variations in bail, plea-bargaining, and the physical circumstances of trials that presently characterize those proceedings.

Endeavour to ensure that judicial decisions at all levels respect International human rights, including the rights of women, and make efforts to eliminate traditional and religious practices imposed by tribal and village councils that are harmful to women. Conclusion Independence of judiciary is a cardinal feature of our Constitution.

All rights and liberties would look like ornamental pieces in the Constitution if these are not enforced in the true spirit by the Courts. It is due to this that the independence of judiciary becomes vital and of paramount importance. A new thinking, new values, new projections and a positivistic outlook with a determined action are essential to build up a solid foundation of our independent judiciary. The judges will have to bring some changes in their approach and outlook. They must strike a balance between the two maxims i.e Justice delayed is justice denied and Justice hurried is justice buried.

I would borrow the words of justice Venkataramiah when he observed:

The ultimate safeguard for the independence of the judiciary has to be sought in the judge himself and not outside and that is the inner strength of judges alone that can save the judiciary.

SP Gupta v. President of India (1981) SCC 87 at 917.

ACKNOWLEDGEMENT

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PAKISTAN LAW JOURNAL 1975 edition ( A Bar Council Publication) Published by : Punjab Bar Council, 3-Turner Road, Lahore.

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JUDICIARY ON TRIAL Appointment . Transfer . Accountability by B.R. SHARMA, Associate Professor Department of Law, Deep & Deep Publications D-1/24. Rajouri Garden, New Delhi-110027. 1989 edition

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JUDICIAL INDEPENDENCE Thursday 19 August 2004(Debate - Issue Briefs) Source: [www.politics.co.uk]

4.

WHAT IS JUDICIAL INDEPENDENCE? Basic Principles on the Independence of the Judiciary Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolution 40/32 of 29th November 1985 and 40/146 of 13th December 1985

5.

JUDICIAL INDEPENDENCE IN THE U.S. by Stephen G. Breyer Associate Justice, U.S. Supreme Court

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JUDICIAL INDEPENDENCE From Wikipedia, the free encyclopedia

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INDEPENDENCE OF THE JUDICIARY- BASIC PRINCIPLES, NEW CHALLENGES (The Hon: Justice Michael Kirby AC CMG)

8.

BUILDING JUDICIAL INDEPENDENCE IN PAKISTAN Asia Report No 86 9th November 2004

9.

INTERNATIONAL COMMISSION OF JURISTS Independence of Judges & Lawyers Documents 13th August 2001

10.

SP Gupta v. Union of India (1981) SCC 87 at 917.