Access to justice and independence of judiciary

Imran Khan’s arrest from the Islamabad High Court in a NAB case, the grant of his custody by a NAB Court and his subsequent release by the Supreme Court has triggered debate revolving around access to justice and independence of judiciary.

Those siding with Khan believe that the arrest from inside the court premises was an invasion on the independence of judiciary and in violation of an established principle of justice whereby a person entering court’s premises is deemed to have sought the court’s protection, and thus cannot be arrested without the permission of the respective court. People on this side of the political divide believe that if such a trend is not discouraged, the fundamental right of access to justice will forever be jeopardised.

Those in support of the government argue that an arrest warrant had been issued by NAB, a body independent of the government. They insist that since the arrest was declared legal by a High Court after which the NAB Court had granted custody, what prompted the Supreme Court to take cognizance of the matter. A bitter opponent of Khan argues that under section 498-A CrPC, no bail is granted to a person who is not in custody, or in Court or against whom no case is registered. This provision was specially introduced in times of Molvi Mushtaq to stop courts granting bail in unregistered cases. Government’s proponents also say that Article 245 (3) of the Constitution puts restrictions on the writ powers of High Courts.

Under sub clause of (3) of the aforementioned Article, a High Court shall not exercise any jurisdiction under Article 199 in relation to any area in which the Armed Forces of Pakistan are, for the time being, acting in aid of civil power in pursuance of Article 245: “Provided that this clause shall not be deemed to affect the jurisdiction of the High Court in respect of any proceeding pending immediately before the day on which the Armed Forces start acting in aid of civil power.”

Sub clause 4 further provides that any proceeding in relation to an area referred to in clause (3) instituted on or after the day the Armed Forces start acting in aid of civil power and pending in any High Court shall remain suspended for the period during which the Armed Forces are so acting.

Citing the above Article, the question being posed is: how will these judges be made accountable for imposing their will, disregarding the Constitution and Law in order to favour a special accused?

Many on the side of the government termed the rulings unusual, biased in favour of the former PM. But, others consider that the Supreme Court was under a moral and legal obligation to ensure independence of judiciary, principles of natural justice, right to fair trial, access to counsel of choice, and above all access to justice being a fundamental right.

Article 4 the Constitution also obligates all to act in accordance with law, while Article 10 A ordains fair trial. Both articles carry the principles of due process of law.

There is no doubt that without complete judicial independence and impartiality, adherence to rule of law will remain a dream.

In this backdrop, the execution of Khan’s arrest warrant from within the High Court premises was not only considered an affront but also unlawful, violating Khan’s right to access justice and compromising the sanctity and safety of the Court. Based on that premise, the apex court ordered Khan’s immediate release.

It is not out of place to mention that the Supreme Court had often been confronted not only with legal validity of the regimes but also with executive actions. The questions arise: can a constitutional order survive such a blatant disregard of its provisions pertaining to fundamental rights and independence of judiciary? What is the scope of legislative power of such a government regarding independence of judiciary?

Judicial review of government acts is an essential feature of democratic governance. Thus the Supreme Court is the ultimate authority to interpret, to review an order, and to ensure protection of fundamental rights.

Published in The Express Tribune, May 20^th, 2023.

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