SAGA OF JUDICIAL INDEPENDENCE IN PAKISTAN

SAGA OF JUDICIAL INDEPENDENCE IN PAKISTAN <!--[if gte mso 10]> SAGA OF JUDICIAL INDEPENDENCE IN PAKISTAN By Muhammad Anum Saleem, Advocate, Lahore When the integrity and independence of the judiciary are at stake, all other questions become unimportant. When the sappers and miners are at work, undermining the foundations of our judicial structure, it is idle to discuss questions of details of construction or reconstruction of the edifice. The doctrine of separation of power grew out of centuries of political and philosophical development. Its origins can be traced to the fourth century B.C. when Aristotle in his treatise titled Politics described three agencies of Government, the General Assembly, the Public Officials and the Judiciary[1]. In Republican Rome, there was a somewhat similar system consisting of Public Assemblies, the Senate and the Public Officials, all operating on a principle of checks and balance[2]. Following the fall of the Roman Empire, Europe became fragmented into nation-states and from the end of the middle ages until the eighteenth century the dominant governmental structure consisted of a concentrating power residing in hereditary rulers,' the sole exception being the development of English Parliament in the seventeenth century[3]. With the birth of Parliament, the theory of three branches of the Government reappeared, this time embodied in John Locke's Two Treatises of Government (1689) where these three powers were defined as "legislative", "executive" and "federative"[4]. Locke, however, did not consider the three branches to be co-equal nor were they designed to operate independently[5]. Locke considered the legislative branch to be supreme, while the executive and federative functions internal and external affairs respectively-were left within the control of the monarch, a scheme which obviously corresponded with the dual form of Government prevailing in England at the time, the Parliament and the King[6]. The doctrine was refined and expanded by Baron de Montesquieu, whose Spirit of the Law appeared in 1748. The Frenchman based his theory on his understanding of the English system, which, since the time of Locke, had generated a more independent judiciary and a tendency towards a greater distinction among the three branches. In discussing the importance of clear delineation of power among the three branches, Montesquieu wrote: When the legislative and. the executive powers are united in the same person or body, there-can be no liberty, because apprehension might arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner. Again, there is no liberty if the judiciary power be not separate from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the Judge would then be the legislator; were it joined to the executive power, the Judge might behave with violence, and oppression. There would be an end of everything, were the same man or the same body, whether of the nobles or the people, to exercise those three powers; that of enacting the laws, that of executing the public resolution, and of trying the cases of individuals[7]. Montesquieu also observed that, in the British System, the judiciary ranked "next to nothing" when compared with the other branches of Government[8]. Seventeen years later, Blackstone noted the importance of a more powerful and independent judiciary, in his Commentaries: Were it [the judicial power] joined with the legislative, the life, liberty and property of the subject would be in the hands of arbitrary judges, whose decision would be then regulated only by their own opinions and not by any fundamental principles of law; which though legislators may depart from, yet judges are bound to observe-were it joined with the executive, this union might soon be an overbalance for the legislative[9]. Several references can also be found in the Holy Qur'an[10] establishing the principle of separation of judiciary from the executive. The Holy Prophet in the earlier years of Islamic rule separated the judiciary from the executive by appointing a separate "Qazi" for each district. The concept of justice in Islam is different from the concept of "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 justice, which may be denoted by "Absolute or Fair Justice". In Surah Al-e-Imran, Qur'an provides: O ye who believe: stand out firmly for justice, as witness 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 heart, lest ye swerve, and if ye distort justice or decline to-do justice, verily Allah is well acquainted with all that ye do (4:135) In Surah Maida, Qur'an provides: O 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 (5:8) After the Independence in 1947, the question of separation of judiciary from the executive was one of the serious issues to receive the attention of lawmakers. In 1951, the Chief Justice of the Lahore High Court, at the request of the then Chief Minister of Punjab, suggested outlines of a scheme for partial as well as complete separation of the two organs. It was suggested that to completely separate the judiciary from the executive, the Judicial Magistrates alongwith their administrative heads should be subordinate to the High Court. However, the scheme could not be effectively implemented lacking a legal force. Even the Constitutional commitments contained in the Objectives Resolution adopted by the First Constituent Assembly of Pakistan soon after the Independence in 1947, that "the independence of judiciary shall be fully secured" could not materialize due to the early dissolution of the Constituent Assembly. As the Objectives Resolution was not adopted as part of the Constitution in 1956, Article 30 was added to the Constitution wherein it was stated that "the State shall separate the judiciary from the executive as soon as practicable". However, before any action could be taken pursuant to Article 30, the 1956 Constitution was abrogated. The 1962-Constitution of Pakistan meekly mentioned the goal of independence of judiciary "which should be ensured without delay". A real, effective and assertive move towards this goal was, however, achieved by the recommendations of the Law Reforms, Commission headed by Chief Justice, Mr. Justice Hamood-ur-Rehman which recommended complete separation of judiciary from the executive and proposed a phased program covering a span of five years to complete the task. Consequently, Law Reforms Ordinance was promulgated in 1972, which can be called the foundation stone of 4he separation of judiciary in Pakistan. The recommendations were not only given effect through an Ordinance but also given Constitutional force through Article 175(3) of the Constitution of Pakistan, 1973[11]. 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, that is, 14 August 1973. However, this period of three years was subsequently extended to five years by the Constitution (Vth Amendment), Act 1976 and then to fourteen years by the Presidential Order of 1985. Since, however, the separation was not affected even by this extended date, two Constitutional petitions were filed, by Sharaf Faridi and some other members of the Pakistan Bar Council in the Sindh High Court and by Azizullah Memon and other members of the Balochistan Bar Association in the Balochistan High Court, under Article 199 of the Constitution complaining of the Government's defiance shown on this subject and seeking issuance of directions to appropriate authorities[12]. A Full Bench of the Sindh High Court, after thoroughly examining all the issues, 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 be issued by the High Court. The High Court, inter alia, directed that the Government of Pakistan should initiate all legislative, administrative steps to bring the existing laws relating to or affecting the judiciary in accord with Articles 175 and 203 of the Constitution within a period of six months from the date of order. 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: The requirement of above Article 175 will be met if the judiciary has effective say in formulation of its annul 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. Both the judgments of the Sindh High Court and the Balochistan High Court were challenged by the Government of Pakistan in the Supreme Court. The Government of Pakistan in Sharaf Faridi's case contended that the time frame given by the High Court was inappropriate to bring about such a massive change. The Supreme Court, while upholding the High Court's decision on merit, extended the time period for implementation of the directions given by the High Court. Subsequently, in line with the Supreme Court's judgment, Judicial Magistrates were separated from Executive Magistrates and the former were directed to act under the supervision and control of High Court and were supposed to have no connection with the executive. No provision was, however, made for granting financial autonomy to the judiciary, which is still dependant on the executive for funds. As a saving grace, only the power of reallocation of the approved budget under various heads was given to the Chief Justice of Pakistan as per the requirement. Remarkable progress has been made by the judiciary after the landmark judgment pronounced in Sharaf Faridi's case supra. For instance, a Full Bench of the Supreme Court in Malik Asad Ali's case[13] held that the concept of independence of judiciary is not an end in itself but is a means to promote impartial decision-making and to preserve, protect and defend the Constitution against encroachment from any other organ of the State. In this context, an independent judiciary free from a tinge of executive control is a guarantee, which according to Objectives Resolution cannot be abridged or abrogated[14]. In Mehram Ali's case, [15] the Supreme Court, while taking a giant leap forward, held that any Courts/Tribunals which are manned and run by Executive Authorities without being under the control of High Courts in terms of Article 203 of the 1973-Constitution cannot meet the mandatory requirements of the 1973-Constitution. Therefore, any Court/Tribunal which is not subject to judicial review and administrative control of High Court or Supreme Court does not fit within the judicial framework of the Constitution. The judgment, while declaring the act of establishing Anti Terrorism Courts by Nawaz Sharif Government (read the executive) as null and void being ultra vires to the Constitution, had far reaching consequences when analyzed in the context of separation of judiciary. However, in utter disregard of the Supreme Court decision in Mehram Ali's case supra there still exist fora like the Custom Courts and Income Tax Tribunals. These Courts/Tribunals adjudicate the matters and punish for offences, however, they are neither under the administrative control of High Court or Supreme Court nor are they free of the executive control. These parallel fora represent the highhandedness of Executive Authority in Pakistan which have refused to tow the line set by the highest judicial forum of the country (the Supreme Court) as well as the most sacrosanct document of legislation (the 1973 Constitution). The 1973-Constitution does not envisage any parallel structure of justice other than the courts established under Article 203. The practice of establishing these parallel structures of justice only undermines the concept of separation of judiciary by the executive. Our legal system has taken a long time and unabated struggle of the legal community to achieve this objective that is being relegated so conveniently. The lawyers should resist this attack and defend the courts from this peril by taking up this matter in the courts .in Public Interest Litigation. As attorneys and counselors at law, it is their duty to see that no harm is done to the usefulness or prestige of the court and the principle of separation of judiciary from the executive. A factor threatening the separation of judiciary is the appointment of sitting Judges as Secretary, Law, Justice and Parliamentary Affairs. Besides, the temporary appointment of Chief Justice of Pakistan as the President of Pakistan during the latter's absence (when the Parliament and Senate are not in session) and the appointment of Chief Justice of the respective Province as Governor of the Province during the latter's absence can also be termed as a practice which should be immediately abandoned. The practice, though justified on the idea of necessity, only propagates the interaction between the judiciary and the executive. Further, the nomination of sitting judges on the Board of Governors of State run Colleges and Universities by the Government should also be curtailed which not only affects the efficiency of Judges but also creates a dangerous liaison between the judiciary and the executive. Bibliography (1) Syed Shabbar Raza Rizvi, Constitutional Law of Pakistan, Text, Case law and Analytical Commentary, Vanguard Books, 2002 Edition. (2) Hamid Khan, Constitutional and Political History of Pakistan, Oxford University Press, First Edition. (3) Syed Shabbar Raza Rizvi, Independence and the Separation of Judiciary as Part of the Constitution Check and Balance PLD 1998 Journal 69. (4) Hamid Khan, Government and Judiciary, 1994-97. The Crisis of State PLJ 1998 Magazine 66. (5) Hamid Khan, Judicial Appointments in the Perspective of Independence of Judiciary, A paper read by Hamid Khan at 6th SAARC Law Conference at Karachi, 3-5 October 1997 PLJ 1997 Magazine 177. (6) Sam J. Erwin Jr., Separation of Powers, Judicial .Independence, Law and Contemporary Problems, Duke University School of Law, 1970, Vol. 35 Page 108. (7) Thomas W. Shelton, The Struggle for Judicial Independence, Virginia Law Review, 1923-24, Vol. 10 Page 214. (8) Mehboob Parvez Awan, Separation of Judiciary, Bit by Bit PLD 2001 Journal 99. REFERENCES: [1] Aristotle, Politics. Book IV. Ch. 14, see generally Robinson, 'The Doctrine of Governmental Power in Ancient Greece, 18 Pol. Sc. Q 614 (1903). [2] J. Bryce, Modern Democrats. 391 (1921). [3] See generally Fairlie, 'The Separation of Powers, 21 Michigan Law Review, 393 (1922). [4] J. Locke, 'Treatise of Civil Government and Letter Concerning Toleration 97-99 (Sherman Ed. 1937). [5] Ibid. [6] Fairlie, supra, note 3 at page 396. [7] B. de Montesquieu, 'Spirit of the Laws', 152 (Nugent ed.) (1823). [8] Ibid at 156. [9] W. Blackstone, Commentaries on the Laws of England, 259-60 (1765). [10] The principal reference book of Muslims. Islam is the State Religion of Islamic. Republic of Pakistan as provided in Article 2 of the Constitution of Pakistan. 1973. [11] The judiciary shall be separated progressively from the executive within [fourteen] years of the commencing day. [12] Sharaf Faridi vs. Federation of Pakistan and others, PLD 1989 Karachi 404 and Balochistan Bar Association, through President Balochistan Bar Association and others vs. Government of Balochistan through the Chief Secretary. Balochistan PLD 1991 Quetta 7, affirmed by the Supreme Court in Government of Sindh v. Sharaf Faridi. PLD 1993 SC 105 and Government of Balochistan vs. Azizullah Memon PLD 1993 SC 341. [13] Malik Asad Ali and others vs. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs Islamabad and others PLD 1998 SC 161. [14] Wukala Mahaz Barai Tahafuz-e-Dastoor and another vs. Federation of Pakistan and others PLD 1998 SC 1263. [15] Mehram Ali and others vs. Federation of Pakistan and others PLD 1998 SC 1445.