Independence of judge ‘not affected’ by criticism

IHC, however, advises avoiding using defamatory language

ISLAMABAD:

The Islamabad High Court has observed that the independence of a judge was not affected in any manner because of public criticism.

"The judicial branch of the State has a pivotal role in the society. A judge is not immune from being criticised. The judiciary, because of the nature of functions assigned to it under the Constitution and the lofty position it enjoys in the society, is open to criticism,” read an eight-page written order authored by IHC Chief Justice Athar Minallah in the case of granting of bail to PPP activist Masoodur Rahman Abbasi.

The PPP activist was arrested by the Federal Investigation Agency (FIA) on account of using abusive language in his speech against Chief Justice of Pakistan Gulzar Ahmed in the month of June.
“Magnanimity, empathy and compassion are the essential attributes of an impartial and independent judge. The independence of a judge is not affected in any manner because of public criticism", the order read.

However, it added that un-thoughtful criticism and using strong and intemperate language or utterances that were defamatory in nature ought to be avoided. "An independent judge, despite the harshness or tone of the criticism, cannot be provoked to react in such a manner that results in his or her becoming the subject matter of a criminal case because of the profound consequences in the context of due process and fair trial."

The order observed that there was yet another crucial factor in such cases i.e. the onerous duty of the courts to ensure the right to due process and a fair trial of a person who had allegedly committed an offence in relation to a judicial officer.

"The allegations in the case in hand are in the context of objectionable and strong language used by the petitioner against the holder of the highest judicial office in the country i.e. the Hon’ble Chief Justice of Pakistan." The court noted that prima facie, the offences mentioned in the FIR were not attracted in the facts and circumstances of the case in hand.

"However, since this is a bail matter, therefore, it would be appropriate not to make any further observations regarding the legality of the FIR. Nonetheless, it is definitely a case of further inquiry."
The court observed that it could not be ruled out that the FIA may have been influenced by utterances made against the holder of the highest judicial officer of the country because the registration of the case, prima facie, appeared to be an abuse of the offences under the Act of 2016.

Justice Minallah in his order also referred to certain portions of his six-year old order, wherein the accused were alleged to have publically displayed banners with defamatory material against a sitting judge of the Supreme Court.

That order read that any perception of impartiality or bias, even if not a reality, would certainly prejudice the right to a free trial of any accused. "Confidence in the court and assurance of a fair trial is a prerequisite for the dispensation of justice and pivotal for creating public confidence and trust in the judiciary. Independence of Judiciary entails that the trial or adjudication is through Courts which are competent, independent and impartial.

The duty of the Courts [is] to maintain this public confidence and independence can only be achieved when it not only ensures a fair trial but also creates an environment and perception of a fair trial."
The IHC CJ noted that courts were always faced with a daunting challenge to be seen as conducting a fair trial, where the criminal charge involved allegations against an accused which related to a sitting member of the bench.

“Not only actual bias but the perception of bias would also raise questions regarding the impartiality of the Court and thus prejudice a fair trial." Justice Minallah noted that bias was the overriding factor for ascertaining a court’s impartiality. “Questions regarding bias may be raised, if the Court makes it evident through its conduct, observations, opinions or otherwise that it has a stake in the proceedings. It would be perceived or appear that the bias will ultimately weigh while concluding the trial, therefore raising questions about impartiality."

The order read that regarding criminal charges, it was an established law that a person was presumed to be innocent until proved guilty and the guilt can be proved only on the touchstone of proof beyond a shadow of doubt.

“The Courts are conscious that public confidence and trust solely depends on the assurance of a fair trial. This onerous task becomes far greater when confronted with a situation when the trial involves an accused charged with allegations against an Honourable Judge. It is probably the wisdom of the legislature that no specific offence falling within the prohibitory clause has been included in the PPC; rather, under a special law i.e. Contempt of Court Ordinance, 2003 it has been exclusively left to the courts to convict/punish an alleged contemnor for maligning, ridiculing or bringing into disrepute the courts or a judge.”

The IHC CJ observed that the bar of conduct had also been raised to such an extent for a judge that no perception could be created of bias or impartiality.

“Bias or impartiality is a disqualification for any person holding the revered position of a judge who is bestowed with the power to adjudicate disputes, protecting lives and also taking lives by awarding death sentences.” The order stated that the judges of district courts must have the confidence and belief that each one of them, while dispensing justice, had the same status as any other Judge of the Supreme Court or a high court.

"It is their duty to ensure fair trial without being influenced or swayed by the persons involved in the cause before them. While presiding [over] a Court they must be conscious that they are not subordinate to anyone. Independence of judiciary is measured by the conduct of the presiding judge in guaranteeing the right to fair trial and giving decisions without fear or favour.”