Is Judiciary In Pakistan Independent?
The independence of judiciary for the smooth running of a state is as significant as the independence of the legislature and executive. The protection of rights and adherence to the rule of law in a society are only possible through the independence of judiciary. To attain this, all public institutions must strictly follow the principle of separation of powers. Ostensibly, such principle has reined in every pillar of the government, be it legislature or executive, to carry out work in respective jurisdictions and eschew unnecessary intervention in the affairs of others.
Let’s open up the term “independence of judiciary”. In general terms, “independence of judiciary” refers to the autonomy of a given judge or tribunal to decide cases while applying the law to the facts. It means that the law is only a legal instrument which legally binds a judge to legally decide a case by applying this legal instrument. A judge must be free from all others external pressures, including pressure from his or her peers.
The United Nations Human Rights Office of the High Commissioner (OHCHR) has chalked out some standards for the independence of judiciary which have been internationally accepted. Let’s analyze the independence of judiciary in Pakistan from the prism of these UN standards (http://www.ohchr.org/EN/ProfessionalInterest/Pages/IndependenceJudiciary.aspx).
Firstly, the criterion for independence of judiciary is the ‘Principle of Natural Judge’. The principle of the ‘natural judge’ (juez natural) constitutes a fundamental guarantee of the right to a fair trial. This principle means that no one can be tried other than by an ordinary, pre-established, competent tribunal or judge. As a corollary of this principle, emergency, ad hoc, ‘extraordinary’, ex post facto and special courts are forbidden.
As far as the aforesaid UN principle in concerned, Pakistan seems to have failed to attain it in both theory and practice. In theory, the 1973 Constitution of Pakistan is inconsistent with the principle as Article 182 is related to the appointment of ad hoc judges. According to this article, the Chief Justice of Pakistan can temporarily increase the number of judges, if needed, with consultation with the judicial commission and after approval of President.
In practice, Pakistan has constituted military courts as a result of the 23rd Amendment to 1973 Constitution. Such courts have taken away the basic right of fair trial in the form of no hiring of lawyers, no proper hearing of the accused, and no proper presentation of witnesses and documents.
We need to make the traditional judicial system strong at every level to avoid in future the need for installation of military courts as they not only blemish our existing judicial system but also question its independence.
The second principle for independence of judiciary in this regard is the principle of impartiality. Impartiality means the absence of bias, animosity or sympathy towards either of the parties. Courts must not only be impartial but also appear impartial.
Impartiality shall be studied with two approaches, subjective and objective. Subjective means, “seeking to determine the personal conviction of a particular judge in a given case.” This entails that “no member of the tribunal should hold any personal prejudice or bias in favour of or against any party. A trial will be unfair not only if the judge is not impartial but also if he or she is not perceived to be impartial.” The objective requirement of impartiality “consists of ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt.” If either test fails, a trial will be deemed unfair.
The judiciary in Pakistan seems to have failed to satisfy the aforementioned two approaches. In case of the subjective approach, the populace questions credibility of judges in the form of bias towards any party in a suit. Recently, a serving judge of Islamabad’s sessions court faced an inquiry for acquitting the owners and directors of a software company through illegal means. A large number of appeals from original decrees also shows the failure of the objective approach as most of the judgments do not give sufficient guarantees to relieve the legitimate and factual doubts that the parties in dispute may have.
To avoid the above shortcoming in judicial independence, an active accountability process through an active Supreme Judicial Council can also be significant. It would not only make the judges accountable but would also reinstate the lost confidence of people in them.
Furthermore, the ‘Principle of Independence From Yourself’ is also important for the independence of judiciary. According to Principle 2 of the UN Basic Principles, “The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions.”
It means that when a judge is deciding a case, his or her personal opinion shall not overshadow any judgment. A judge must decide the case on the basis of facts and law. Otherwise, a case with similar facts would expect different judgments from different judges. The application of a judge’s personal opinion in any case is not only in contrast with the said UN principle but also against the spirit of law. We cannot conceive the independence of judiciary till it gets rid of the judge’s personal opinion.
The influence of personal opinions of a judge over a case is a common issue amongst the Pakistani judiciary, which poses a serious threat to its independence and impartiality. In order to get rid of it, we need to install a judicial system where a judge looks at the facts of a case in such way that totally avoid the judge’s personal opinion.
To make the judiciary more independent, a strict separation of powers along with mutual cooperation between the pillars of the government is needed.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organisation with which he might be associated.