Independent judiciary

Last week, Pakistan was ranked 130th among the 139 assessed countries globally in “adherence to rule of law”, evaluated by the World Justice Project. Even in South Asia, Pakistan’s position is second last. Nepal, Sri Lanka, India, Bangladesh all have performed better than Pakistan in the rule of law category.

Recently, veteran lawyer and former president of the Supreme Court Bar Association, Ali Ahmad Kurd directed a barrage of criticism towards the judiciary. Kurd said that there was a “clear and observable division” within the judiciary, accusing the courts of taking dictation from institutions.

All the rights granted to the citizens under the constitution are worth nothing if they are not guaranteed by an independent judiciary. An independent judiciary forms the core of any justice system, so our constitution also provides that the independence of the judiciary shall be fully secured.

A truly independent judiciary has three major characteristics. First, it is impartial, i.e., judicial decisions are not influenced by a judge’s personal interest in the outcome of the case. Second, judicial decisions, once rendered, are respected, specifically by the executive. And third, the judiciary is free from interference.

The World Justice Project has assessed rule of law by dividing it into four fundamental components — accountability, just law, open government and accessible and impartial justice. The majority of these factors strengthening adherence to rule of law are directly or indirectly associated with the performance of the judiciary.

Adherence to rule of law can only be achieved when there is complete judicial independence so that people can take their disputes to court and have them resolved according to law. But, unfortunately, Pakistan is lacking an independent judiciary – which is a reality.

The UN Human Rights Office of the High Commissioner (OHCHR) has pointed out some standards for the independence of judiciary which have been internationally accepted. Firstly, the criterion for independence of judiciary is the ‘Principle of Natural Judge’.

The principle of the ‘natural judge’ constitutes a fundamental guarantee of the right to a fair trial. This principle means that no one can be tried other than by an ordinary, pre-established, competent tribunal or judge. As a corollary of this principle, emergency, ad hoc, ‘extraordinary’, ex post facto and special courts are forbidden.

Pakistan seems to have failed to attain the aforesaid UN principle. In theory, the 1973 Constitution of Pakistan is inconsistent with the principle as Article 182 is related to the appointment of ad hoc judges. In practice, Pakistan has constituted military courts as a result of the 23rd Amendment to 1973 Constitution. Such courts have taken away the basic right of fair trial.

Another principle for independence of judiciary in this regard is the principle of impartiality. Impartiality means the absence of bias, animosity or sympathy towards either of the parties. The judiciary in Pakistan once again failed to satisfy the aforementioned approach. The influence of personal opinions of a judge over a case is a common issue amongst the Pakistani judiciary.

The judiciary can achieve public trust and confidence by improving its performance delivery, impartiality and by avoiding internal and external interferences in the judicial process. Once the judiciary becomes free, it might in true judicial independence and improved observance of rule of law.