How true judicial independence can be achieved

Published: May 1, 2012
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The writer is advocate of the Supreme Court of Pakistan and senior partner at Mandviwalla & Zafar

The writer is advocate of the Supreme Court of Pakistan and senior partner at Mandviwalla & Zafar

It is through an independent judiciary where judges have the power to decide any dispute without fear, favour or pressure from anyone (including the government) that the culture of impunity can be eradicated and rule of law established. Indeed, this was the reason why the people of Pakistan joined the lawyers’ movement for restoration of judges. The recent decision convicting Prime Minister Yousaf Raza Gilani of contempt undoubtedly proves that the Supreme Court is today as ‘independent’ as any apex court in the free world.

However, the danger is that with increased independence comes the pitfalls of absolute power which can corrupt absolutely. In such situations, the fear is that the judges may start assuming that, as final arbiters, they are infallible and that the law is what they say it is. To avoid this it must be ensured that judges remain faithful to the law and continue to resist any self-indulgence which an excessive sense of independence can produce.

The apex courts have neither the power of sword nor of purse — but the real powerful tool available to them is the jurisdiction of judicial review and the authority to enforce fundamental rights. Pakistan’s superior courts have, over the years, exercised this power carefully and maturely to invalidate certain pieces of legislation and executive actions, but always stayed away from matters which could be deemed policy issues or linked to political debate.

With increased independence came the concept of ‘judicial activism’, which in my view is beneficial and sometimes essential. There are many cases where had the courts not taken a dynamic approach, justice would not have been done. For example, the Supreme Court has decided that the government’s closure of schools in remote areas violates the fundamental right to education. As result, a million students in such areas are able to receive an education. The Court has recognised that an updated and transparent voters list is part of the people’s right to democracy. The courts have also successfully unearthed cases where public wealth was being looted. Such powers would not be exercised if the courts were not independent and judicially active.

Judicial activism however took a risky direction worldwide when the media started playing a role in that the courts began taking up cases highlighted in the media. When such cases are successfully decided by the courts, public expectations that the judiciary is everyone’s saviour started to increase. This is when judicial activism started giving way to judicial adventurism. Judges came to realise that popular decisions brought fame not only to the courts but to individual judges as well. It is only natural that such publicity brings with it a sense of being ‘powerful’ and ‘influential’. The cautious approach of the past began to be considered by some judges to be timid and started being ignored. This is natural. Jurists have long said that things need to be controlled.

Under pressure from the media and the public, some judges in Pakistan are beginning to open new frontiers. The recent case of rental power projects is a good example of the courts delving into matters of economics and policy. The tendency to form commissions to investigate matters sometimes means that the courts assume the role of investigator, prosecutor and judge all in one. The courts have made commissions to recover written-off loans, passed orders for fixing prices of sugar, assumed powers to remove a head of a public-sector corporation on the basis of incompetence and are frequently appointing or removing government investigators. To me, these appear to be examples of going beyond the realm of judicial activism. This is a concern in India as well. Justice VR Krishna, a former judge of the Indian Supreme Court, is among many when he says: “In the name of judicial activism, modern-day judges in India have abandoned the traditional role of neutral referee and have increasingly resorted to tipping the scales of justice n the name of ‘distributive justice’.”

Activist judges have often ignored or side-stepped precedents to arrive at preconceived results, which conform to their conception of justice. However honest and bona fide this exercise, its legal legitimacy is open to question.

No one can be allowed to ignore the law to suit one’s perception or desire of what should be done or to decide cases according to personal whims. This is because absolute power is a negation of rule of law and will lead to judicial despotism. The moment the courts start taking decisions on policy or political matters, their actions become anti-democratic (unlike members of parliament, judges are not elected but selected). Ultimately, the end result will be (and this is a serious issue which Pakistani courts must avoid at all costs) that policy and political matters, for which the courts neither have the machinery nor manpower, will ultimately lead to confrontation with other state institutions. If we look at Pakistan’s judicial landscape, there is increased criticism that all the aforementioned is beginning to happen. In order to avoid this, the courts must consciously leave certain questions to be decided by the will of the people.

Jurists are unanimous in saying that judicial adventurism is wrong and have used the concept of ‘who will guard the guards’ in their argument. Judges agree that the way to control judicial adventurism is through ‘judicial self-restraint’ in which the courts make a self-conscious effort not to decide policy or political questions. Yet, history has shown that this self-restraint does not necessarily work all the time.

To me, if judicial power becomes unbridled and justice to the common man is denied or delayed, true judicial independence is not achieved. It is time that mechanisms are put in place to make the judiciary more accountable by regulating judicial self-restraint and by focusing on the real issue, which is to provide speedy justice to all under rule of law. The only way to achieve this is through the active participation of the Bar, civil society and the media. They are the gatekeepers of judiciary’s reputation, and must be vocal, able and willing to criticise judgments, without fear of contempt. This is the only way that the judiciary’s true independence will be achieved.

Published in The Express Tribune, May 1st, 2012.

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Reader Comments (18)

  • Anonymous
    May 1, 2012 - 12:35AM

    Sir, supreme court is extremely partial and partisan. They are human beings and they are infected with same virus as their brothers who are not judges.
    There are probably thousands of lawers who support qadri and shower him with flowers. His supporters include former CJ . How he could have been impartial. Several of these lawyers will be appointed as judges in future as judges appoint judges in our country because they will appoint people with same strain belief ( hate PPP)if you have any doubt you can see all decisions by consensus. Reason they are appointed because of one reason that they share same thought process
    There is famous quote and I am not writing in full.
    ……” good people do good things and bad people do bad things, but good people do bad things in the shadow of belief( whether it is political or economic or religious).

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  • Falcon
    May 1, 2012 - 12:55AM

    It is interesting to see all of these ‘enlightened’ articles sprouting all over the Pakistani newspaper space in reaction to just a conviction of PM. May be in addition to handing out such precious advice to judicial system, our intellectuals should also instill some sense of responsibility into the executive so that they stop doing this 24-7-365 drama and get back to working for the public who elected them with hopes of a better country. However, getting back to your topic, mission creep is what you are talking about and it always happens in organization when one group is too ambitious or the other group is too lazy or careless to deliver on its responsibilities. In this instance, most likely it is the latter case.

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  • m.b.f.h.
    May 1, 2012 - 1:20AM

    Excellent! The article was my time and money’s worth(that I spent on Tribune). The writer is definitely very qualified (again, an ego-boosting comment). No wonder our beloved Prophet(pbuh) said to “throw dust” at flattery and all saints of all religions first learn and practice to deny & ignore the Desires of the Ego before venturing on any path for knowledge and wisdom.

    Hope all In-charge of an Authority read this article.Recommend

  • Mirza
    May 1, 2012 - 1:52AM

    One of the best legal analysis one has the honor to read. Thanks a lot ET to bring Op Ed like this. You write “the courts assume the role of investigator, prosecutor and judge all in one.” This is exactly what the Memo case is where the courts have become everything and got help from Mansoor Ijaz a known enemy of Pakistan. In addition by doing so this SC has lowered itself to the trial court against political opponents (executive), ignoring the backlog of 20 thousand cases and appeals.
    Thanks for speaking up with courage, regards.

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  • May 1, 2012 - 2:19AM

    Bravo Mr. Ali Zafar for having pinpointed some grey but very important and least touched areas in terms of true independence of judiciary. No doubt, a vibrant, independent and honest judiciary could be alive to the call of a common man and could be the last resort in case of any crisis. I am of the view that, at least, all the Government functionaries and institution must be inculcated the least sense of reaslization that there is a last door too, which if knocked, could make a differnce. No adventurizm and despotism serve the common man interest but lead to institutional friction and overlapping which ultimately deviate from the main objective of justice in time.
    And one last but not the least point, which the august writer has ‘probably’ missed to focus is the skyrocketing fee charges of lawyers. Why this grey but very important problematic area is not given any heed either by bench or bar or even by the so called vibrant media? A common man cannot immagine of hiring a high profile lawyer if stuck up in the lenthy , costly and complicated judicial relief. This is a dilema existing in the medical field too with more or less magnitude. Is there anyone to respond honestly and pragmatically here????????????????

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  • Syed Hamid Ahmed
    May 1, 2012 - 2:56AM

    Great job Mr. Zafar. Very fair and balanced article, no need to add or subtract. Mr. Zafar you are one of the few whom our nation look for guidance and leadership. keep up the good work.

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  • elementary
    May 1, 2012 - 4:33AM

    PPP’s victim card again.
    They are the victims not the poors of rural sindh who have been kept starved ,illiterate, and superstitious in order to ensure the path to power, at will.
    They are the secular voice which must be voted to power else it’s all doom and gloom with extremists reaching the coveted throne.

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  • Hamza Arshad
    May 1, 2012 - 6:47AM

    Thought provoking article and the writer has shown a balanced approach by not coming down hard on judiciary or lauding it with hyperbolic commendation. However, I disagree with his view in the end paragraph when, about judicial restraint, Mr Ali says, “The only way to achieve this is through the active participation of the Bar, civil society and the media”. I think the current judicial adventurism is on the move only because of the participation of the three. Their slogan mongering talent does not seem to abate even when Pakistan is on the brink.

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  • Mir
    May 1, 2012 - 7:20AM

    People gave their verdict on the eve of april 26 when SC convicted PM. It became clear there are contrary opinions about judiciary in country. I think with judiciary, media also need to restrain from adventurism.

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  • Imran
    May 1, 2012 - 11:49AM

    justice is one of the democratic ideal, I can,t see Pakistan can have such kinds of brains in judicial system. If some people called this judiciary independent, they are living fools paradise. I totally agree with writer that our judges must not spoil the spirit of constitution during proceeding of any case. Mr. Zafar you must illuminate double standard in court decisions like one in case of contempt and disqualification of 52 judges those who take oath under second PCO of General Musharaf. In this case supreme court spare four judges including justice Javaid Iqbal bust rest were send home. Why???????????????????????????????????????????????????/

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  • iamtahir
    May 1, 2012 - 12:21PM

    I see no difference in martial law courts and the existing superior courts. Martial law courts gave their decisions after breaking the constitution and existing judiciary is giving verdicts according to their self claimed righteousness instead of constitutional requirements in matters of policy and political issues. It is feared that our judiciary desires to become god father or king maker like something.

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  • javeria saleem
    May 1, 2012 - 12:26PM

    i have the honour to be his student. no doubt, mr. zafar z one the best legal minds in our country.

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  • Hamza Arshad
    May 1, 2012 - 1:00PM

    Dear Javeria Saleem,
    I think we should comment on the article written by the worthy columnist and not on his personality. It needs an objective approach transcending personal level and exploring the question raised by the writer.

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  • Annum Saeed
    May 1, 2012 - 1:41PM

    Public satisfaction and accountability of judiciary is extremely important for the judiciary itself.

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  • A Peshawary
    May 1, 2012 - 3:13PM

    Mr. Zafar; thank you for making me, a layman, understand (I am not being a law student), some typical legal jargans like “Judicial activism”, “judicial adventurism”, “distributive justice”, “Activist Judges”, “The judges assuming the role of Investigators”.

    You have made us understand the complex and technical terminology and todays hottest discourse going on in Media and all around. I hope some of the judges of superior courts may apprise with same sort of learning either through court proceedings reported Overwhelmingly, thier decision or by reading your article and providing us with some insight on the same.

    Well done sir thanks again.

    A Peshwary

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  • Tahir Younus
    May 1, 2012 - 5:35PM

    @elementary: They (PPP) are secular voice, REALLY??? Did you forget their coward silence in the matter of murder of Salman Taseer? I have stopped believing in the secular credentials of PPP ever since. Yes, there are some individuals in this party that are true secularists, but mostly, the jayalas have the same obscurantist beliefs the majority of Pakistanis do. There are many anti-religion, ex-socialists communists who belong to the party, but they can be termed as secularist only to the disgrace of the term.

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  • Bilal Ahmad Bajwa
    May 1, 2012 - 5:56PM

    Nice piece of work, it is always good to read your opinions.

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  • elementary
    May 1, 2012 - 8:14PM

    Whenever an elected government fails to deliver for the good of the common man and misgoverns to the extent where it brings country to the brink of disaster,one or the other of the major institutions of country takes notice and stops them in their tracks. Now you can argue endlessly how far stretched this act was from their jurisdiction and whether it was justified.

    Digressing from the legal discussion let’s take the moral basis.Constitution provides immunity to the President becuase it expects president to be man of integrity and above any corruption.If a President finds himself in the midst of charges of corruption in a foriegn country why can’t he step down and go face his charges. Wouldn’t that spare our Judges and Generals the trouble of having to go beyond their jurisdiction. will that not be a true democratic and just solution.

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