Do more for independence of judiciary
Akhtar Ali Kureshi
If somebody has taken this soft impression after restoration of deposed judges and Chief Justice of Pakistan that we have achieved an independent judiciary, than it has to be added here that independence of judiciary is not an end for diversify reasons.
All of us can visualise an otherwise free judiciary may still not be impartial and that is why sheer accomplishment of independence of judiciary may not be excellent if the true goal of impartiality still remains a fantasy.
As the Supreme Court of Pakistan is the sole residuary custodian of the constitution and liable of its own independence, whereas the SC decided in many cases and particularly in famous case of Al-Jehad Trust (PLD 1996 SC 324), commonly recognised as the judges case and in that milestone verdict approximately every boulevard of intrusion with independence of judiciary was not only fully attended to but also a luminous endeavour was made to interpret the important articles of the Constitution in such a way that intimidation to independence of judiciary and its exploitation were curtailed.
Since 1996 this is second round as earlier our judiciary by itself come under the influence of intruders and lost its precious independence as all of us observed through many judgments of the SC after October 1999. In a well-cultured and predominantly in a democratic society the significance and importance of independence of judiciary is usually understood and widely respected.
It is frequently identified that in order to secure and then safeguard the independence of judiciary, the following factors can play a vital role: constitutionally inherited courts, security of tenure of service, neutral appointment system followed by a fair procedure, expressed judicial ethical code, equal and fair discipline, reasonable and constitutionally protected handsome remuneration, physical and mental security, immunity for judicial performance, liberty from intrusion in decision-making from superior judiciary, separation of the judiciary from the executive, freedom from un-necessary transfers, government support to implement court's order, executive support to prosecute and punish wrong doer, an independent and vocal Bar, an educated public demanding an impartial judiciary and last but not the least a free and impartial press.
After suffering a lot in many decades only a few were already attained on various above sited imperatives of independence of judiciary but regrettably security of tenure and a government conscious to the public opinion happen to be two serious areas where everything achieved through the other factors stands destabilised from time to time by the so-called PCOs.
Independence of judiciary which is commonly ignored but the said aspects are so important that without attending to them the whole superstructure of independence of judiciary remains incomplete and may be a trivial and superficial. In order to understand the present situation that as already elucidated above, independence of judiciary is not an end rather it is beginning of a new era and formation of a civilize society we ever fascinated while gazing towards the excellent judicial system of the West.
The impartiality and independence only help in securing and maintaining judicial impartiality. It is possible that a judge may be absolutely independent but he still may be partial in many ways and, thus, his independence may not be of any avail because the end result may not be just, fair and correct as suppose to be.
There are many cases like current wave of terrorism, etc. wherein the judge's personal safety and security of his immediate family is an issue and a judge who is weak from within may find it hard to resist the pressure.
There may also be cases where a judge disagrees with majority of his colleagues/ brother judges on an issue of principle and in such matters only a judge possessing influence of personality can obtain a stand according to his convictions.
History is full of examples where judges with no sanctuary of tenure and missing proper protections, amenities or salaries had been taking bold and independent decisions.
It was surely their personal metal and obligation to their profession rather than anything else that had made them truly independent.
A judge known to be afflicted with his own individual prejudices may be independent from irrelevant influences but he cannot be professed by the public at large as an independent judge if he does not make a decision on his cases with an independent mind.
It is, thus, but natural that every judge tends to look at the facts of a case from his own individual perceptions and this is why many a time different judges handling the same case and the same set of facts arrive at different conclusions on the facts, therefore if the ideal of independence of judiciary is to be achieved in any meaningful manner then a system has to be evolved whereby the individual judges are to be trained to look at and examine the facts of a case from a position which is entirely detached from the judge's own personality.
In some parts of the civilized world despite a great fanfare about independence of judiciary, judges are selected and appointed to the hierarchy of courts, including the apex court with particular reference to their known conservative or liberal approach towards the national or moral issues.
With great respect it is considered such a practice to be negation to impartiality of judiciary and can only be sympathized with the litigant taking his case to such a judge when he knows in advance that the judge openly holds and is expected to express a view other than that which the litigant is about to canvass before him.
It may be difficult to achieve the highest status of independence of judiciary as we done it after a great struggle and sacrifices and now it become our prime duty to protect it and make endeavour to maintain it once for ever for ourselves and for generation to come.
The writer is an Advocate of the Supreme Court of Pakistan, Law Professor, Free Lance Columnist, Member of International Bar Association, London and former Assistant Advocate General Punjab