INDEPENDENCE OF JUDICIARY: ITS IMPORTANCE AND ROLE IN PAKISTAN
The independence of the judiciary in any country is crucial for the development of democratic government and the rule of law. The principle of judicial independence revolves around the idea that judges should not be subjected to external pressure or influence when making decisions. Judicial independence requires judges to base their decisions on the law and facts, free from both external influences and personal feelings or biases.
Ensuring an independent judiciary is important not only for the fair administration of justice but also for protecting human rights and upholding democratic principles. An independent judiciary serves as a check on the powers of the executive and legislative branches, maintaining a balance of power within the government and maintaining public confidence in the legal system.
Needless to highlight the role of the independent judiciary in fostering the culture of political and economic stability by delivering judgements following the Constitution and laws.
Historical perspective of the judiciary in Pakistan
The judiciary of Pakistan has a long history dating back to the medieval period, evolving from one form to another to provide justice to the litigants. Present-day Pakistan inherited its judicial system and judiciary from the British colonial era.
The East India Company obtained its judicial authority from the Charter of 1623, which allowed it to hold trials for its English employees and set up its own courts. As the Company evolved from a trading entity to a territorial power, its judicial powers grew through additional charters and laws.
The changing roles of the East India Company and direct British rule of India obliged the British government to introduce the High Court Judicature Act 1861. Consequently, a High Court was established in Lahore in 1919 followed by the Sind Chief Court under the Sind Court Act of 1926, whereas under NWFP Courts Regulation 1931 and British Balochistan Courts Regulation 1939, Courts of Judicial Commissioner were established for NWFP (now Khyber Pakhtunkhwa) and Balochistan (Baluchistan).
In 1937, a Federal Court was established under the provisions of the Government of India Act 1935. Judges of both the High Court and the Federal Court were appointed by the Crown, to hold office during ‘good health and behaviour’. Those judges were to be removed by the Crown on recommendations of the Privy Council on the grounds of infirmity of the body or behaviour of the judge.
Post-Independence role of the judiciary
The post-independent period remained regulated by the provisions of the Government of India Act 1935, with certain modifications, till the promulgation of the first Constitution of Pakistan in 1956.
The functioning of the Lahore High Court, Sind Chief Court and Courts of Judicial Commissioners remained uninterrupted under the Act of 1935 after the independence of Pakistan. However, Pakistan established a new High Court for Dacca under the High Court (Bengal) Order 1947 and a new Federal Court by the Federal Government of Pakistan Order 1948. An amendment in the Act of 1935, the high courts were, however, empowered to issue ‘prerogative writs’ in 1954
The first Constituent Assembly, tasked to frame the constitution for the country, was dissolved by the Governor General of Pakistan on 24 October 1954. The Speaker of the Legislative Assembly assailed the proclamation of the Governor General before the Sindh Chief Court which set aside the proclamation. However, the Chief Justice of the Federal Court (now Supreme Court), based on Braxton’s maxim (otherwise unlawful is made lawful) introduced the ‘doctrine of necessity’ to validate the dissolution of the Legislative Assembly by the Governor General.
It was the beginning of surrendering the independence of the judiciary because firstly, the judgement was not based on any legal precedent, but a new doctrine was introduced to justify the dissolution of the Constituent Assembly and secondly, the Chief Justice of the Sindh Chief Court was under obligations of the governor-general. The introduction of the ‘doctrine of necessity’ had far-reaching consequences not only on the future of democracy in Pakistan but also on the independence of the judiciary.
The Chief Justice of the Federal Court, Mr Justice Munir, remained in office till May 2, 1960. He also validated the coup and martial law of Gen. Ayub Khan (later Field Marshal) in 1958. In his ruling, he wrote that ‘necessity knows no law’ observing that ‘a successful coup d’etat is an internally-recognised legal method of changing a constitution. Mr Hamid Khan, a renowned jurist, in his book ‘A History of the Judiciary in Pakistan’ described Justice Munir as ‘extremely competent but lacking in commitment and character’.
Justice Munir’s closeness to Governor General Ghulam Muhammad earned him elevation to the slot of the Chief Justice of the Federal Court. However, earlier, he had refused elevation to the Federal Court and preferred to remain Chief Justice of the Lahore High Court. On the retirement of the first Chief Justice Sir Abdul Rashid, Mr Justice A.S.M. Akram (a Bengali), being the senior most judge was a potential candidate for the slot. Still, the Governor General manipulated him to refuse to become the Chief Justice. He then appointed Mr Justice Munir as the Chief Justice though there were already six Federal Court judges, qualified to become the Chief Justice of the Federal Court. Mr Justice Munir, thus, returned the favour by upholding the dissolution proclamation.
The Constitution of 1956 and 1973 provided for the independence of the judiciary to ensure independence of the judiciary. In the preamble of the 1956 Constitution, a commitment was made for the independence of the judiciary as well as the separation of the judiciary from the executive as soon as possible. Similarly, the Constitution of 1973 also provided for the separation of the judiciary progressively.
The objective behind the separation of the judiciary from the executive branch of the state was to ensure the independence of the judiciary in its dispensation of justice. However, the subsequent judgements of the superior courts remained controversial where the question of upholding the Constitution was involved. The Supreme Court validated three martial laws and the dismissal of civilian governments by presidents invoking the doctrine of necessity. The judicial history of the country has thus been chequered and the majority of the judgements rendered by the superior judiciary (High Courts and Supreme Court) had either been influenced by the undemocratic forces or by the personal considerations of the judges.
The independence of the judiciary is intertwined with the transparency and accountability of the judges. To avoid any accountability, the superior judiciary used the notion of its ‘independence’. It frustrated any move of the government to bring about transparency and accountability of the judgements and the judges themselves by taking shelter of the ‘independence of the judiciary’. Any such move was propagated as an attack on the independence of the judiciary through pliant media and lawyers.
The oath of office requires the judges of the superior judiciary to follow the code of conduct, not be influenced by their personal interests, preserve, protect and defend the Constitution, and deliver the judgements without fear or favour, affection or ill-will. The quite recent judgements by the superior judiciary were against their oaths of office. Few of the judgements of the Supreme Court were criticised by the independent jurists who viewed that the judges, rather than ‘preserving, protecting or defending the Constitution’, have re-wrote the Constitution under the influence of their affection.
While judicial independence is paramount, it needs to be balanced with mechanisms that ensure judges are accountable for their conduct and decisions. The mechanism for the accountability of the judges has been provided in the Constitution of 1973 in the form of the Supreme Judicial Council (SJC). Unfortunately, this forum was used against those judges only whose ouster was demanded by vested interests. The case of Justice (Retd) Shaukat Ali Siddiqui by the SJC was an example of how he was dismissed as a judge of the Islamabad High Court due to his speech against the ISI Chief. Revamping the SJC or introducing an independent forum to replace the JSC for the accountability of the judges of the superior courts is thus perhaps the need of the hour.
Religiously abiding by the Code of Conduct, which the Supreme Court had prepared and adopted by itself, could be another mechanism for the accountability of a judge. Unless there is deterrence of accountability, the judges will remain susceptible to external or internal pressure or their self-interests jeopardising the independence of the judiciary.
Recommended by LinkedIn
Case Studies: Judicial Independence and Accountability
The United States
In the United States, judicial independence is enshrined in the Constitution. Article III provides for the life tenure of federal judges, subject to good behaviour, and protects their salaries from being diminished during their tenure. These provisions aim to insulate judges from political pressures.
Accountability in the U.S. judiciary is maintained through mechanisms such as impeachment by Congress, although this is rarely used. More commonly, judicial conduct is regulated by the Judicial Conduct and Disability Act, which allows for complaints against judges and disciplinary actions by judicial councils.
The United Kingdom
The United Kingdom's judiciary enjoys a high degree of independence, supported by the principle of judicial independence enshrined in the Constitutional Reform Act 2005. This act established the Supreme Court of the United Kingdom, separating the judiciary from the House of Lords and enhancing its independence.
Judicial accountability in the UK is ensured through the Judicial Conduct Investigations Office (JCIO), which investigates complaints about judicial conduct and can recommend disciplinary actions, including removal from office in extreme cases.
Germany
Germany upholds judicial independence through the Basic Law (Grundgesetz). Judges are appointed for life and can only be removed under strict conditions, ensuring their decisions are free from external influence.
Accountability is maintained through a system of judicial self-governance, where judges participate in disciplinary panels. Additionally, there is a clear separation of powers with checks and balances ensuring that judicial misconduct is addressed through appropriate legal mechanisms.
India
In India, judicial independence is a fundamental aspect of its constitutional framework. Article 50 of the Indian Constitution mandates the separation of the judiciary from the executive. Judges of the higher judiciary (Supreme Court and High Courts) enjoy the security of tenure and are appointed through a collegium system that aims to minimise executive influence.
Judicial accountability in India includes the impeachment process for judges of the higher judiciary, although this is a rare and complex procedure. Additionally, the judiciary has internal mechanisms, such as the in-house procedure for addressing complaints against judges.
Singapore
Singapore maintains a strong and independent judiciary, which is vital for its reputation as a global financial hub. The Constitution guarantees judicial independence, and judges are appointed by the President on the advice of the Prime Minister and the Chief Justice.
Judicial accountability in Singapore is managed through a robust system of checks and balances, including the Judicial Conduct (Investigation) Act, which allows for the investigation of complaints against judges and ensures that any breaches of conduct are appropriately addressed.
Conclusion
The independence of the judiciary is a fundamental principle that upholds the rule of law, protects human rights, and ensures fair and impartial justice. Judicial independence is safeguarded across different jurisdictions, including the United States, the United Kingdom, Germany, India, and Singapore, through constitutional provisions, legal frameworks, and institutional practices.
Judicial independence does not mean unrestrained power. It is crucial to have effective accountability mechanisms to uphold public trust and ensure that judges adhere to high standards of conduct. These mechanisms differ from country to country but typically involve codes of conduct, judicial review, disciplinary actions, and transparency.
In conclusion, although the specific structures and practices may vary, the fundamental principles of judicial independence and accountability are essential for the integrity of legal systems globally. The equilibrium between independence and accountability guarantees that judges can carry out their responsibilities without bias, while also being accountable to the public they serve.