INDEPENDENCE OF JUDICIARY

INDEPENDENCE OF JUDICIARY <!--[if gte mso 10]> INDEPENDENCE OF JUDICIARY By G. H. Abbasi, Advocate, Karachi "Independence of Judiciary" is a tantalogous phrase as judiciary without independence is inconceivable. It is a misnomer. Independent Judiciary is not a term of art. It is an enigma, susceptible to various connotations. The judicial system in Pakistan is not 'idealistically'--oriented in the sense that its evolution, if any, is not coherent with our professed ideology. It has juridically continued' with the old Anglo-British system of administration of justice with some tailored variations of self-serving improvisations from time to time to suit the political exigencies that be. Notwithstanding the several constitutional experiments, the political cavaliers, who had a lucky stint at the power-play have always tried to find a slip-way to escape, dead or alive, from the invented devices of their successors, solemnly designed to appear as legal or constitutional permutations to undo the 'evil' threatening the prevailing status quo. ("However, such musical-chairs ensembles have continued to play only to the amusement of their respective band-leaders"), and the spectators in the bargain are left stabbing the air, confusing applause with anguish. Independence of judiciary has not to be understood in the same strain as the independence from the colonial rule. The independence of judiciary which we are considering here is an inherent inseparable ingredient of the integrated whole i.e. "The Constitutional Trichotomy". Our Constitution is a written document. It consists of trichotomy of Legislature, Executive and the Judicature. In letter and spirit our present Constitution has absorbed great many functional similarities and the dimensional parameters from the other developed democratic Constitutions. Like Pakistan, India is another important component of the developing world with an added clout of being the largest democracy in the world. Both the countries are undergoing the pangs of growing needs of adjustment of ever-changing social values and political priorities and, amazingly, have developed innumerable common constitutional ethos. However, the analytical appraisal of the Judiciary's Independence would best be understood when we examine the working of the Trichotomy. Ex-facie the judiciary is a co-ordinate branch of Government and its equality in the trichotomy appears only formal being restrained to; "what the law is" and not "what the law ought to be". Essentially it is concerned with the function of legitimizing or withholding approval of the actions taken by the Executive. Basically the judiciary's pre-occupation is strictly with the constitutionality of the legislative actions and not its wisdom. The Constitutional integration of the three tiers of the administration is so intertwined that the exercise of unilateral authority muchless the absolute power by any one of them is not possible and would not be conducive to the sound administration of the democratic institutions. In the context which depicts almost a similar Constitutional format Alexander Hamilton, an American constitutionalist, got it right when he observed that:-‑ "The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The executive not only dispenses the honours, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary on the contrary has no influence over either the sword or the purse, no direction either on the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force or Will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgment." The ratio of this observation is that in terms of political grammar it is the legislature and the executive, not the judiciary, who are the epicentre of the political system. These two tiers of the trichotomy exercise the dominant influence over the public policy. No doubt that the ordinary function of the judiciary is to render specific decisions of the specific disputes in order to bring about their orderly settlement so as to prevent chaos and social disruption. But the judiciary operates through Courts. The Court basically is the peace preserving device. It checks excess, stops subversive aggression, keeps the peace and decides the controversies. It oversees the very foundations of democracy e.g. the elections. It even evolves peaceful solutions against revolutions by force. All this qualifies the judiciary as the parallel Court House Government which revolves on its own axis. How important this Court House Government is can be best understood by imagining the conditions if the Courts were abolished. Illustrions, may appear as parabolic yet they explain the situation appropriately. According to an old Persian custom whenever a king died there was a five days' period of anarchy in order that the people might perceive the advantages of having rulers and laws. In one of the Canadian Towns, the police went on strike for only one day. It was estimated that the decoities, thefts, robberies and the related crimes committed on that single day surpassed the crime record of the entire period of the existence of that town. The culprits went scot free because of want of their indictment in Court. We will, therefore, see that the judiciary as an institution is a sine a qua non of any civil society. It is needless to burden the judiciary with "Independent" as its prefix. Let us see what power and function our Constitution has conferred upon the judiciary. Part VII of the Constitution relates to judicature. It is divided into 50 Articles. The scheme of the power distribution to judiciary is functional and procedural. Articles 186, 189, 190, 201, 203-G may be cited as of some significance. Under the constitutional disbursement the power of implementation does not fall to the share of judiciary, not to say of the binding effect of its decisions. Article 186 speaks of advisory jurisdiction. Under Article 189 decisions of the Supreme Court are binding only on other Courts and not on the Government or any other organ of the State. Article 190 makes it mandatory for the Executive and the Judicial Authorities in Pakistan to act in aid of the Supreme Court. Thus, 'Aid' softens the effect of "shall" appearing in the same article and adopts a charitable posture, leaving the Supreme Court at the mercy of aid giving agencies for the implementation of its decisions. Similarly High Courts and the Federal Shariat Court suffer from the same frugal treatment of the power sharing under the Constitutional setting. Thus, the authority of the judiciary under the Constitutional dispensation is not universal in relation to the State but only to its own distributaries, that is, the subordinate judiciary. Whatever power is given to the judiciary for the implementation of its decisions it is given through the subordinate legislation. Only the contra-constitutional action is subject to interference though the interpretative process which is binding on the other organs of the State. It is only Article 184 of the Constitution which has mercifully conferred the original jurisdiction on the Supreme Court which the Supreme Court has used as a foothold to enable it to re-write the short history of Pakistan's judiciary. Even the coupde-tats, bravely described as law creating revolutions, human rights violations, the suo motu cognizance of the environmental disasters, abrogations and suspensions of the Constitutions, entertaining and legitimizing extra/supra-Constitutional half-measures, all have been fused and channelized into normal Constitutional process with the paramount object of aiding and strengthening the shaky geo-political foundations of the country. This goes to the debit/credit account of the judiciary. The evolutionary aspect of our judiciary has largely been built up on the dicta of the foreign laws which are contrived and tailored to cleanse the messy extra-constitutional soot salus populi est suprema lex is the famous spin off to qualify as a permanent fixture on the constitutional edifice of Pakistan. Many more theories of jurisprudence and the doctrines have been adopted with benefit to keep the justice according to law moving along. This has made a tremendous difference in the sense that admittedly the shattered spasmodic political performance has to some extent been restructured and the light at the other end of the tunnel though somewhat hazy, is beginning to appear. The debit/credit account, the bitter-sweet juridical experiences or any high sounding pseudish constitutional theories to overcome any no-win situation, notwithstanding, the judiciary at no point of time as an institution and even as a "half-brother" of the trichotomy has been contextually dependent on any other organ of the State in the matters relating to its judicial performance. The judiciary is the only one single powerful organ of the trichotomy in this country. It enjoys awesome authority. March through the 50 years of the judicial life of this country, you will find both a minus and a plus judicial landmarks, say, from Tamizuddin Khan to Nawaz Sharif. Of course this brief journey of 50 years was grievously interrupted but then with its invisible but massive strength it came back, even though posthumously, and the highway to the rule of law is now all-weather thoroughfare. The systematic and gradual growth of the judiciary from one Judge Federal Court to the 17 Judges Supreme Court, from one Lahore High Court to the four Provincial High Courts, the Federal Shariat Court and the other subordinate Courts and tribunals is the result of the self-propelling process of the judiciary itself. The lapses and jolts which have at times shaken the confidence of people in the performance of the judiciary were not institutional. Such situations were the creations of only those individuals who happened to be in the position of power and control and the others succumbed to the demands of discipline. All said and done, with all the pitfalls, bad judgments delayed dispensation of justice, the arrogance of the office, the judiciary nonetheless has out-reached its constitutional limitations to bring about rationality in thought and action. If we as lawyers for a moment visualize certain Constitutional and legal bottle-necks through which extracting any solution appears almost impossible, the judiciary with the help of Doctrines and Maxims has been able to squeeze out some respectable quid pro quo despite the circumstantial pressures. Locus poenetentia salus papoli est supremales-legitimate expectations-promissory estoppel-implied ratification. In pari delicto and more are all the various kinds of tools with which the judiciary repairs, rebuilds and rounds off the sharp edges to render smooth justice. ***