how to ensure independent judiciary in pakistan

7/31/2019 How to Ensure Independent Judiciary in Pakistan

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How to ensure

Independence of

Judiciary in PakistanPresented to: Sir Ahmad Raza Khan

Presented by Hassan Nasir -------738 B.A.

(Hons.) GCU Lahore.


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Table of Contents:

I. IntroductionII. Meanings of Independence of Judiciary

III. The rationale behind independence of judiciaryIV. Pakistans Judiciary and its establishmentV. Judicial independence under the Pakistan Constitution

VI. Safeguards stemming from independence of judiciaryVII. Judicial activism and Ways to ensure independence of Judiciary in

Pakistan


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I. Introduction:There are certain basic institutions within every state which need to function properly and

independently in order to ensure the stability of the state. One of the most important of such

institutions is an independent Judicial System.

In my opinion, the independence of judiciary poses the notion that the judicature organ of a

state is free to adjudicate upon the matters placed before it and to deliver its judgments and

decisions without fear and bias and be in accordance with the law of the land and dictates of

the constitution.

The commonly floated phrase independence of judiciary itself is such a point on which I would

like to duel or argue as lots of questions regarding it arise in my mind. The first thought that

comes to my mind is that whether judiciary in Pakistan is really not independent? If so, what

are the forces, institutions or elements in the socio-political setup and power structure of

Pakistan which curtail and enslave this organ?

The independence of the judiciary was promised since the early days of Pakistan when the

constituent assembly passed the Objectives Resolution in 1949, which was moved by Liaquat Ali

Khan, the then Prime Minister of Pakistan. The documented resolution clearly stated that the

independence of thejudiciary shall be fully secured.

I will propose an all-round view of the judicial system prevalent within Pakistan, the

establishment of courts, meanings of independence of Judiciary, ways to ensure its

independence as well as comment on Judicial Activism in Pakistan.

II. Meanings of Independence of Judiciary:One of the cardinal principles of a democracy is the concept of an Independent Judiciary. An

ideal and independent judiciary would mean that all the components of a judicial system,

including the Supreme Court, would be free from any sort of external and exertive pressures,

undue intervention and compulsion either direct or indirect i.e. brought about by other


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institutions, colleagues, superiors or any third parties outside the judicial system. The judges

would not be bound or compelled by any external factor to give a judgment against the law and

would be free to decide the cases brought before them on the basis of law and their

conscience.

A number of legal instruments elaborate the importance of judicial independence such as: The

universal declaration of human rights (article 10), the international covenant on civil and

political rights (article 14), the Vienna declaration and program for Action (1993: paragraph 27),

the International Bar Association Code of Minimum Standards of Judicial Independence (New

Delhi: 1982), the Universal Declaration on the Independence of Justice (Montreal: 1983) and so

forth.

III. The rationale behind independence of Judiciary:The concept of Independence of Judiciary within a Federal state emerges from the logic of

federalism. Ever since the beginning of the history of legality, the courts are bound to act as

interpreters of the law and the arbiters between not only citizen and citizen but also between

State and citizen. All the rights guaranteed by the constitution are rights against the State and

thus the judiciary has been assigned by the Constitution very important and delicate role to

play, namely, to ensure that none of the organs of the State or the Government functionaries

acts in violation of any provision of the Constitution or of any other law and because of the

above nature of work entrusted to judiciary it was envisaged in the Constitution that the shall

be independent. Therefore, judicial independence is necessary within a State to give the

citizens a chance to fight, on right, against the mighty State.


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IV. Pakistans Judiciary and its establishment:The System:

There are distinctively two components of the Judiciary in Pakistan which are as following:

a) The Superior Judiciaryb) The Subordinate Judiciary

The Superior Judiciary of Pakistan comprises of two courts, the Supreme Court and the High

Courts. The Supreme Court comprise of a 17 judge panel which hears appeals from the High

Courts, though the Supreme Court has no administrative supervision over the High Courts. The

High Courts are located in each provincial capital of Pakistan and they cater to the appeals

forwarded by District & Sessions Judges, members of the Subordinate Judiciary.

The Subordinate Judiciary within Pakistan comprises of Civil Judges and Judicial Magistrates,

lying at the base of the hierarchy. These judges are supervised by the Additional District &

Sessions Judges or the District & Sessions Judges. The most superior of the Subordinate

Judiciary are the District & Sessions Judges, located in each District of a province, who also

supervise the Additional District & Sessions Judges, though the Additional District & Sessions

judges are at the same hierarchical level.


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A hierarchical depiction of the Judicial Systems is given above to clarify the structure of the

system. In addition to these two basic Courts, there are a series of other courts such as the

Federal Shariat Court, Labour Courts, Anti-Terrorism Courts, Accountability Courts and the

special courts & tribunals.

Establishment & Jurisdiction of Courts:

It has been provided under article 175 of the constitution of Pakistan that there shall be a

Supreme Court of Pakistan, a High Court for each province and a court for the Islamabad Capital

territory and such other courts as may be established by law. Courts of Law mean the courts

The Judicial System of

Pakistan

The Superior

Courts

The District

Courts

A hierarchical depiction of

the Judicial System of

Pakistan

Supreme Courts

High Courts

Addl./District &

Sessions Judges

Special Courts &

Tribunals

Civil Judges/Judicial

Magistrates


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which have been established by the virtue of statutes, which are known as District Courts or

Subordinate Judiciary.

V. Judicial independence under the Pakistan Constitution:One of the basic principles of the Constitution of Pakistan is the independence of judiciary. The

constitution states that it is the will of the people of Pakistan to establish an order and the

independence of the judiciary shall be fully secured, as is seen in the part of the Constitution in

Article 2A and in the provisions of the Part VII of the Constitution which elaborates the principle

of independence of judiciary and in such a manner so as to ensure the independence of

judiciary.

The judiciary is, therefore, independent of the executive and legislature and has jurisdiction,

directly or by way of review, over all issues of a judicial nature.

Judicial independence, itself, is status-oriented as it focuses on the status of the court as well as

the relation between the courts and the others, particularly the executive branch of the

government. There are three core and distinctive characteristics of the judicial independence,

which are as following:

Security of Tenure Financial Security Administrative Security

Article 175 clearly denotes that the judiciary, including the lower or subordinate judiciary as it is

a part of the judicial hierarchy, is to be independent and separate.

VI. Safeguards stemming from Independence of Judiciary:This is in light of the independence of judiciary which provides the judges with a safe haven to

exercise their judicial acts, within their jurisdiction or capacity, in the best interest of justice,

even if the judge may have to commit an unlawful act, and he would not be liable to any


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damages. The reason is not that judge has any privilege over others to make mistakes but that

the judge should be able to do his duties with complete independence and freedom from fear.

The Superior and the lower judiciary enjoy same level of immunity and protection and the

reason for this protection is to ensure that the judiciary may be free in thought and would act

judicially, for the sake of justice and law. The only condition in which a judge may be liable to

any damages is that he would be acting unlawfully outside his jurisdiction but until and unless

he is acting within his jurisdiction, he would not be liable to any damages.

VII. Judicial Activism and Ways to ensure independence of judiciary inPakistan:

With increased independence of the courts comes Judicial Activism which is essential and

quite beneficial. The concept of Judicial Activism is that the courts start exercising more of their

power and authority to review and adjudicate. We have seen in Pakistan that the Supreme

Courts, after the independence of the Judiciary, have inclined more towards Judicial Activism,

helped by the media reports regarding several issues like the issue of IPPs (Independent Power

Producers) or that of the tariff of sugar or such cases of corruption against powerful politicians,etc. This would not have been possible if the judiciary had not been independent or judicially

active. All that glitters is not gold and judicial activism, despite being good itself, has lead to

judicial adventurism, which is not good as the judges exercise their powers more to gain fame

from the masses and not in the interest of justice.

The threat to complete independence lies within an independent system itself and the threat is

none other than the lust for power and undue exercise of power to gain dominance and

absolute power is a negation of rule of law and will lead to judicial despotism.

Independence of judiciary can be ensured by avoiding such acts which conform to judicial

adventurism and despotism in order to avoid any sort of confrontation with the other executive

bodies of a State and judicial self-restraint methods should be adopted so as to avoid undue


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interference with proceedings of the other bodies of a State. Unbridled judicial power and

delayed dispatching of justice would render judiciary as dependent rather than being

independent. Mechanisms, such as self-restraint and focusing on the real issues like dispatching

of speedy and fluent justice to everyone under the rule of law, should be adopted as soon as

possible and the only way to adopt these mechanisms successfully is to have an active

participation of the Bar, the Civil Society and the Media as they have the ability to criticize the

judgments by being vocal, without any fear of contempt. This is the only way that the judiciarys

true independence will be achieved.


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References:

Access to Justice in Pakistan by Justice (R) Fazal Karim.

Building Judicial Independence in Pakistan a report by International Crisis Group (ICG),

10 Nov. 2004.

Independence of the judiciary, Indonesian Experience A joint address by Prof. Dr. Bagir

Manan, Chief Justice of the Republic of Indonesia and Mr. Iftikhar Chaudry, Chief Justice of the

Islamic Republic of Pakistan.

A special interview I conducted with Mr. Asad Imran, Civil Judge, Family Courts, Lahore

How true judicial independence can be achieved by Ali Zafar, an article in the Express

Tribune, published on 1st

of May, 2012.

how to ensure independent judiciary in pakistan

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