Opinion Maker

By Ghazala Awan

‘A society can be judged for its moral and ethical values through its judicial system; a free and fair judiciary defines the strength of the society.’ Raja Mujtaba

Islam has spelt out justice as it’s corner stone therefore it not only enforced strict judicial codes but also ensured that justice was available to one and all across the society. Judicial independence free of fear and favour can be gauged from the time Hazrat Omar (RA), the second Caliph of Islam when he had to appear in the court, the judge rose from his seat to greet him; seeing this, the Caliph dismissed the judge saying that when he got carried away by his status and personality then how could the judge maintain impartiality. Now the judges are summoned or dictated through various channels to get the decisions in their favour. Also the process of justice has become so very expensive, that a poor person cannot afford to bear thus a citizen is denied the basic right to get free and fair justice.

Hazrat Ali (RA), the fourth Caliph said a government can survive on kuffar but not with injustices in the system. Today precisely this is the reason that the people feel alienated from the State. Another famous incident is that of Winston Churchill when he was appointed the Prime Minister of Great Britain at a time when defeat had become almost certain. On assuming the office, he asked if the courts were functioning and the people were getting justice. When he was told in the affirmative, he said then Britain cannot be defeated.

Today the single most factor that can pull the country out of despondency is a free, fair and impartial judiciary that is strong enough even to convict the high and the mighty of our society. Keeping this in view, the judiciary of Pakistan is burdened with a very heavy responsibility not only to dispense justice with complete impartiality but also free and in shortest possible time. A famous saying that ‘justice delayed is justice denied’ holds very true for all times to come.

In Pakistan, there have been patches when the judiciary as a whole or certain individual judges tried to assert itself but it was always resented by the people in power. The worst example that can be quoted when Nawaz Sharif was Prime Minister and the political activists of his party led by the parliamentarians attacked the Supreme Court when it was in session. It is also reported that Justice Sajjad Ali Shah was alienated when a former Judge Rafiq Tarrar was sent with a bag of money to Quetta to create a bench from with the apex court judges to pass a ruling against Justice Sajjad Ali Shah and got him unseated. Names of Justice Turab Patel, A R Kayani and few others would always be remembered as strong pillars of judiciary.

The latest blow to judiciary came in times of General Parvez Musharraf who sacked the Chief Justice Iftikhar Chaudry. Unnerved, Iftikhar Chaudry took a stand that moblised the whole nation and got him restored but not without incidents of selling out the movement by those who projected themselves as the stalwarts of the movement.

Judicial independence is essential for any just and fair legal system. We can simply say that judicial independence is the ability of a judge to decide a matter free from external pressures or inducements. Additionally, the institution of the judiciary as a whole must also be independent with no involvement of the government and its executive arms in the process of judiciary. The principal role of an independent judiciary is to uphold the rule of law and to ensure the supremacy of the law. If the judiciary is to exercise a truly impartial and independent adjudicative function, then it must have special powers to allow it to “keep its distance” from other governmental institutions, political organisations, and non-governmental influences or repercussions from such outside influences. Article 175 of the Constitution of Pakistan guarantees the independence of judiciary and it prevents any interference by the executives in the affairs of the Judiciary but in practice its complete the opposite of it; our octopod administration is seizing all the judicial powers.

The Supreme Court of Pakistan is the highest institution in the legal echelon. Under the supervision of the Supreme Court there are High Courts in all the capital cities of provinces and benches in other major cities. The districts courts are administratively handled by the High courts. The Supreme Court has a highest trust of public. People still have the faith in the functioning, credibility of the apex court for giving social justice. Although social justice is a matter of concern in Pakistan, trial case of a murder goes on for decades but in Russia justice gets done within a fortnight, Middle East in days and in some other countries within months. Cases subjudice in the courts for abnormally long period time are not prolonged due the judges, in fact courts have to depend on the governmental organizations, departments and sometimes executives or administrative bodies to facilitate their verdicts for substantiation of matter as evidence. This is the bend where governments always try to blow hard to release the notorious criminals or corrupt bureaucrats or save the politicians.

All the criminal cases require the participation of three very important individuals which are the counsel for the prosecution, the judge, and counsel for the accused. If any of these parties is influenced or intimidated by any external resources in the proceedings, then the judicial system would be incapacitated to provide justice, the system support that’s not forthcoming. Eventually notorious criminals walk away with smiling face. Knowing well about the crime and its perpetrators is helpless to award punishment and the government is least pushed. This lethargy and indifferent attitude has crept in almost every government machinery. Weather a criminal is let off or mass killings take place right in front of the police does not affect the government. Governments at best, issues a statement, forms a committee and condemn the criminals in the media and then forget about the whole crime.

There are two views about an independent, powerful and responsive judicial system. If the judiciary is working without any fear or pressure, people would get justice that would eventually bring good name to the government but this does not serve the personal goals of any government or political functionary hence justice is corrupted and left to rot.

To bring about an effective and meaningful judicial system, the judiciary must be immune to all sorts of pressures and blackmailing, be it political, economic, public opinion and even their own feelings or personal prejudices. Now a new pressure group has emerged in the shape of electronic media. In the recent past, Some channels went all out for their own benefit in terms of ratings. Sometimes on special  occasions they start airing paid advertisements to build the pressure on the apex courts to get release of some political/influential people, They are  not only involved in a multi billion rupee scams but is also part of a huge criminal racket that is plundering the nation.

 In the strings of the administration Supreme Court and other courts cannot deliver the fair justice. On the contrary Supreme Court passes any order or judgment against the administration or bureaucracy but the government does not implement it. Constitution   of Pakistan limits the power of Chief Justice to pass any direct order for sue Moto action. Supreme Court‘s limitations can be seen in the Karachi‘s Sue Moto Action and its “Conclusion”.  We all know that the government has lost its way and Chief Justice had a responsibility to step up and make sure it got back on track. Since the government is aware of fragility of the judiciary so did not take its decisions seriously. It’s now clear that the government does not want to be held to account in this way and built the pressure on the Judiciary for its illicit motives. Administration is well aware of the fundamental problem of the relationship between the independent judicial authority  and the political power  that is the separation of powers. Since a sound system of justice must above all be genuinely independent and not subjected to any political or government interference of any sort. Rather the government must ensure that the judgments of the courts are implemented in letter and spirit. Nonetheless it will axe the governmental claws on the judiciary which might bring the clear justice and strong implementation of the apex court’s orders. The key link to fostering and establishing the rule of law is ensuring an independent judiciary, and providing the environment of a fair and equitable legal system where an independent judiciary can flourish, safeguarded from outside influences. A society where people know their rights are guaranteed.

Moonis Elahi case is the latest judgement but would people call it justice is left to the readers' discretition.

by fair laws which apply in the same way to all citizens equally, and are applied in an open and public way by an independent and impartial Judiciary is always a secure and stable society.