Dissatisfaction With Law

INDEPENDENCE AND THE SEPARATION OF JUDICIARY AS PART OF THE CONSTITUTIONAL CHECK AND BALANCE <!--[if gte mso 10]> INDEPENDENCE AND THE SEPARATION OF JUDICIARY AS PART OF THE CONSTITUTIONAL CHECK AND BALANCE By Syed Shabbar Raza Rizvi, Advocate, Supreme Court, Lahore In the early days of civilization, the legislative, the Executive and the Judicial Powers were vested in one person in a State, namely a Chieftain or a Monarch or a Ruler. The concept that there are three organs of the State which share the power of a State, namely the Executive, the Legislature and the Judiciary, is somewhat a modem concept. Upon the advent of Islam, the judicial functions were separated from the Executive functions at its very initial stage by the Holy Prophet (p.b.u.h.) by appointing a Qazi for each Province. The separation of the Judiciary from the Executive was implemented more effectively during the period of Khalafat, the reason being that the foundation of Islam is based on Justice. The concept of justice in Islam is different from the concept of the remedial justice of the Greeks, the natural justice of the Romans or the formal justice of the Anglo-Saxons. Justice in Islam seeks to attain a higher standard of what may be called "Absolute Justice" or "Absolute fairness". We find repeated references to the importance or justice and of its being administered impartially, independently and freely of Executive. It is commanded, In Surah Al-e-Imran:-‑ "O ye who believe: stand out firmly for justice, as witnesses to Allah, even as against yourselves, or your parents, or your kin, and whether it be against rich or poor, for Allah can best protect both. Follow not the lusts of your hearts; lest ye swerve, and if ye distort justice or decline to do justice, verily Allah is well-acquainted with all that ye do." In other Surrah Allah commands as under:-‑ Surah Maida, "Oh ye who believe stand out firmly by Allah as witness to fair dealing, and let not the hatred of others to you make you swerve to wrong and depart from justice. Be just that is next to piety: and fear Allah, for Allah is well-acquainted with all that ye do." In Surah Nisa: "Allah doth command you to render back your trusts, to those to whom they are, due, and when ye judge between man and man, that ye judge with justice: verily how excellent is the teaching which he gives you; for Allah is who heareth and a seeth all things." Again in Surah Maida, it is ordained: "If thou Judge, judge in equity between them, for Allah loves those who judge in equity." "Judges are not to be led by personal likes or dislikes, love or hate". Reference may be made to Islamic jurisprudence, and international perspective by C.G. Weeramantry, "Since in Islam law stood at the apex of social organization, those who administered the law were likewise elevated. In the early days of the Islamic State this was reflected in the pre-eminent position of the Judge, to whom even the ruler had to refer disputes to which the latter was a party. The judge was called the Hakim-ush-Shara, i.e. ruler through law." The notion of judicial impartiality is heavily underscored in juristic literature. The extent to which impartiality was expected of the Judge is well-illustrated in the story concerning The Caliph Omar who once had a law suit against a Jew. When both parties went before the Qazi, the latter rose in his seat out of deference to Hazrat Omar, Hazrat Omar is said to have looked upon this act of deference to one party as being such unpardonable judicial weakness that he dismissed the Qazi at once. In another instance Hazrat Ali, the fourth Caliph saw a Christian in the Bazar who was selling an armour belonging to Hazrat Ali. The latter did not exercise his authority to snatch the armour but lodged a complaint with the Qazi who gave decision against Hazrat Ali as he could not produce satisfactory evidence. In another instance like of Hazrat Omer is also often quoted is, that once Hazrat Ali appeared in the Court in a dispute with another person and Qazi stood up from his seat in deference which was deprecated by the latter as his conduct was highly improper and inconsistent with the independence of the judiciary. In Islamic concept of independence and the separation of judiciary from the Executive appointment of Judge has a direct link. Islam has given a great importance to justice which must be done at all costs. Those who perform the functions of the Qazis (Judges) must be not only men of deep insight, profound knowledge, but they must also be Allah fearing, forth-right, honest, sincere men of integrity. Hazrat Ali, the fourth Caliph of Islam directed to one of his Governors:-- - "So far as dispensing of justice is concerned, you have to be very careful in selecting the officers for the same. You must select people of excellent character, superior caliber and meritorious record. Abundance or allegations, and complexity of cases should not make them lose temper. They should not be corrupt, covetous or greedy. They should not be satisfied with ordinary enquiry or scrutiny of a case but scrupulously go through all the Pros and Cons, must examine every aspect of the problem carefully, and whenever and wherever they find doubtful and ambiguous points they must stop, scan through further details, clear the points and only then proceed with their decision. They must attach greatest importance to reasoning, arguments and proofs. They must pass their judgment without fear, favour or prejudice. They should not develop vanity and conceit when complements and praises are showered upon them. And they should not be misled by flattery cajolery. Pay them handsomely so that their needs are fully satisfied and they are not required to beg or borrow or resort to corruption. Give them such prestige and position in your State that none of your courtiers or officers can over lord them or bring harm to them. Let judiciary be above of Executive pressure or influence, above fear or favour, intrigue or corruption". These Islamic teachings and back-ground was taken care by the framers of the Constitution of Pakistan. And, therefore, independence and the separation of judiciary was accordingly acknowledged and provided in the Constitution. In Preamble of the Constitution, which later on in 1985 became operative part of the Constitution, it was provided:-‑ "Wherein, the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed, wherein, the independence of the judiciary shall be fully secured." The principles of social justice, or a just society or independence of judiciary are to be guided by Islam because Pakistan as a State is not a Secular State. According to Article 1 Pakistan is an Islamic Republic and under Article 2 Islam is a State Religion. Under Article 227, it has been provided that all existing laws shall be brought in conformity with the Injunction of Islam as laid down in the Holy Qur'an and Sunnah, and no law shall be enacted which is repugnant to such injunctions. Under Article 228, a Council of Islamic Ideology is provided. The President or the Governor of a -Province may or if two-fifths of its total membership so requires, a House or a Provincial Assembly shall, refer to the Islamic Council for advice any question as to whether a proposed law is repugnant to the Injunctions of Islam. As stated above and in accordance with the Islamic concept of judiciary, it has to be independent, and to have an independent judiciary; it has to be separated from Executive of the State. This principle of Separation of Judiciary from the Executive has been acknowledged by the present Constitution of Pakistan. Article 175 (3) reads:-‑ "The Judiciary shall be separated progressively from the Executive within 14 years from the commencing day." Under Article 175, as originally enacted, it was provided that the Judiciary shall be separated from the Executive progressively within three years from the date on which the Constitution came into force viz. 14-8-1973. However, the period of three years was subsequently extended to 5 years by the Constitution (5th Amendment) Act 1976 and then to 14 years by the revival of the Constitution 1973 Order (P.O.14 of 1985). However, the command of Article 175(3) was not effected even within extended date. This lapse on behalf of the Government was challenged before the Sindh High Court by Mr. Sharaf Faridi and some other members of the Pakistan Bar Council. The Constitutional Petition was heard by a Full Bench of 6 Judges of the Sindh High Court. The grievance made in the said two Constitutional Petitions was that the Government concerned had failed to comply with their Constitutional Obligation to effect Separation of the judiciary from the Executive, despite the expiry of the period prescribed in this behalf. After thoroughly examining all aspects, of the matter, the Full Bench reached the conclusion (by majority of 5 to 1) that the Constitutional obligation contained in Article 175(3) had indeed been disregarded and that appropriate directions could competently be issued by the High Court under Article 199 directing the authorities to fulfil them. Accordingly, the petitions were accepted vide judgment, dated 24-4-1989. Besides these specific directions some important findings were recorded in respect of several other matters including the matter of financial independence of the judiciary. In this connection, it was observed:-‑ "I am inclined to hold that the requirements of above Article 175 will be met if the judiciary has effective say in formulation of its annual demands. To put it differently, the Executive should place Annual Funds as per requirement at the disposal of the judiciary for operating it without being interfered with by any agency of the Executive." The judgment of Sindh High Court directing the Governments concerned to take the steps indicated in the decision were appealed by the Government of the Sindh and the Federation of the Pakistan in the Supreme Court. These appeals come up for hearing on 9-10-1989, the learned Attorney-General of Pakistan did not press the contention that the direction made by the High Court could not competently be made by it in exercise of its jurisdiction under Article 199 of the Constitution but simply urged that while the Government of Pakistan and the Government of Sindh have no serious objections to the finding that it was obligatory to carry out the separation of the Judiciary from the Executive and were bound to implement the mandate of the Constitution in this behalf, they could not accept the time frame provided in the High Court's Order for implementing the directions given in the judgment. According to the Attorney-General the said time frame was not realistic and administrative chaos could result. Therefore, on merit the judgment of the High Court was upheld while extending the time of implementation of the directions given by the High Court. A cut off date given by the Supreme Court of Pakistan was initially 23rd March, 1994. Later on the Review Petitions were filed by the Federal and the Provincial Government for extension of time, which was extended up to 23rd March, 1996 to enable the respective Governments to take steps and finalise the Separation of the Judiciary from the Executive. It may be mentioned that under the judgment of the Supreme Court of Pakistan, Judicial Magistrates have been separated from the Executive Magistrates and the former are to act under the supervision and control of the High Court and would have no connection whatsoever with the Executive. The separation of judiciary from Executive was prayed as it is considered absolutely essential to have an independent judiciary in the country. A petition was directly filed in the Supreme Court of Pakistan under Article 184(3), whereby appointment of Judges of the High Courts was challenged on the ground that the provisions of Article 193 were not strictly complied with. According to the Petitioner the appointees were not duly qualified. This case was decided on 20th March, 1996 reported as Raees-ul-Mujahid v. Federation of Pakistan commonly known as Al-Jehad Trust case. The petition was accepted. All the relevant Constitutional provisions regarding the appointment of Judges of High Court and Supreme Court of Pakistan were interpreted. It was observed by Mr. Justice Ajmal Mian:-‑ "I reiterate that the independence of Judiciary is inextricably linked and connected with the Constitutional process of appointment of Judges of the Superior Judiciary. The relevant Constitutional provisions are to be construed in a manner which would ensure the independence of the judiciary." In the same judgment, Chief Justice Mr. Sajjad Ali Shah observed:-‑ "Appointment of a Judge and the mode and manner in which a Judge is appointed has close nexus with the independence of the judiciary and cannot be separated from each other. The process of appointment of a Judge must be made transparently so that the litigant, public and people at large should have faith in the independence of judiciary. Normally, people come to the Court to have their disputes adjudicated upon by the Judges and they come with expectation that Judges are impartial and justice will be imparted strictly according to law without any fear or favour or extraneous consideration. This kind of faith and trust will vanish if appointments are not made in a transparent manner strictly on the basis of merit." In Pakistan we have adopted Federal type of the Government under the Constitution. The Constitution envisaged trichotomy of power inter se between the three organs of the State. Each organ of the State is required to function within the bounds specified in the Constitution though one can say that the judiciary is the weakest limb as it does not have the resources or power which the legislature or the Executive enjoy but it has been assigned very important and delicate role to play, namely to ensure that none of the organs or the Government Functionaries Act in violation of any provisions of the Constitution or of any other law. Hence the superior judiciary can check the transgression if so made by any authority or organ of the State upon the rights of any individual or another organ of the State. Above discussion leads us to the conclusion that Islam as a religion believes in an absolute independent judiciary and in the absence of such system no country can be named a Welfare State in the modern sense. Its citizens cannot be presumed having fundamental rights. For the same reasons framers of the present Constitution of Pakistan had introduced such provisions which would ensure the independence of the judiciary in the country. How far, we have succeeded to act upon and adhere to those provision: This is a question which still needs to be answered. ***