THE MOST encouraging and redeeming feature of free institutions in Pakistan is in the role of the judiciary. While there has been talk of decline of power of the legislature and while there has been criticism against the dominance and inefficiency of the executive, it is accepted by everyone that the judiciary in Pakistan is playing a significant role in safeguarding the civil liberties of the citizens as well as in acting as a guardian of the constitution.
The independence of the judiciary is absolutely essential for impartial administration of justice. The passionate desire and the consequent determination of the people of Pakistan to establish an independent judiciary to ensure justice and the resultant security, peace and prosperity for themselves, is manifested through the Objectives Resolution which is now a substantive part of the Constitution being Article 2-A thereof and Articles 4, 9,10A 14, 25, 175,175A, 179 stand incorporated in the Constitution towards the attainment of the same declared and sacred objective.
The critical indispensability of dispensation of justice in a society, be it between men and men or between the governors and the governed, could never be over-emphasized. The fact that it is justice and justice alone which could ensure peace, in a society and its consequent strength, security and solidarity, was one of the serious lessons taught to the civilization by its history. And history, be it ancient, biblical, medieval or contemporary, also tells us that societies sans justice had never been permitted to pollute this planet for very long and had either to reform themselves paying heavy costs usually in blood or had else been wiped off the face of this earth. The French, the Russian, the Chinese and more recently, the Iranian revolution are some remarkable lessons in this regard.
It is perhaps for this very reason that doing of justice is conceivably the most repeated Quranic Command after `Salaat' and `Zakkat'. And it is also for the same cause that `Right of Access to Justice' which is inconceivable in the absence of an independent and impartial judiciary, was by now a well-established and a universally accepted human right as would be evident, inter alia, from Article 10 of the Universal Declaration of Human Rights and from Article 14 of the United Nations Convention on Criminal and Political Rights and this right is now being secured by the people in different States by making requisite provisions in their respective Constitutions. Through Eighteenth amendment Pakistan has incorporated this right vides Article 10-A which reads “for the determination of his civil rights and obligation or in any criminal charge against him a person shall be entitled to a fair trial and due process”. Even before the insertion of this Article it was repeatedly declared in various judgments by the Supreme Court that right to live in peace and in a just hand a fair environment is inherent in the right to life, therefore, the right of access to justice was a well recognized and an inviolable Fundamental Right as enshrined in Article 9 of the Constitution and its denial amounts to infringement of Fundamental Right.
Once it is settled that Access to justice is inviolable fundamental right in Pakistan, it would be inconceivable and a mere a mirage in the absence of an independent judiciary guaranteeing impartial, fair and a just adjudicatory mechanism. Therefore, the demand for a judiciary which is free of executive influence and pressures and which is not a subservient to executive was an integral part and an indispensable ingredient of the said Fundamental Right of access to justice. In this context, the founding father of Pakistan resolved to establish an independent judiciary in Pakistan as it is manifested by the objective resolution of March 1949. Further, while introducing the constitutional bill in 1956, the then Law Minister rightly claimed that the independence of the judiciary is a principle very dear to the people of the country.
Independence of judiciary is beneficent legacy of the British Concept of Justice and is one of most remarkable attributes of English Institutions. It is also the legacy of the Islamic concept of justice; the concept of legal sovereignty has been strong in the annals of Islam. In all the democracies, judicial institutions play a significant part. The spirit of democracy, as MacIver puts it, lives in the fundamental law, the law that elevates the community above the state. We do not define democracy by its spirit, since democracy is a form of government; but men struggle towards democracy not for the sake of the form but for the way of life that it sustains. Any monopoly of power is a threat to civilized way of life, any group endowed with irresponsible power is suppressive of democratic liberties. To check the monopoly of power or concentration of irresponsible power, an independent judiciary is regarded as imperative. In a sense, democratic government is always a limited one, for in a democracy the government that rules by law is itself ruled by law. An eminent Pakistani Judge, Mr. Justice Murshed, has stressed the fact that for a century and a half the role of the judiciary and the legal profession in the Indo-Pakistan sub-continent has been most significant in the development of law and legal forms patterned after the English and American legal systems. The existence of written constitutions, he goes on, which set limits to the powers of the central and provincial legislatures had necessitated that in the last analysis, the interpretation of these constitutional limits should rest with the courts. He claims: ‘For about a century our courts have, even during the British regime, adjudicated upon the vires of the legislative provisions. Some of their decisions have been unpopular with the people and some have been disliked by the government of the day; but judges have maintained a consistent aloofness from the popular opinion or government control. It is perhaps due to this attitude and impartially of the judges that people have so much confidence and faith in the judiciary that no organ or branch of the government enjoys greater confidence or respect from the people of Pakistan as the judiciary enjoys. It is regarded as the custodian of the rights of citizens; it is looked upon as a guide in the path of evolution of free institutions in the country. The almost universal confidence reposed in the impartially and integrity of the judiciary is of the greatest value to the future of free institutions in Pakistan.
Undeniably, People of Pakistan have shown on and off that the cause of independence of judiciary is very close to their hearts. Movement for the restoration of judiciary in wake of dismissal of Chief Justice of Pakistan demonstrated that the people of Pakistan understand the significance of independence of judiciary and can go to any extent to save their institutions.
Successful revolution which led to restoration of judiciary demanded more reforms in the judicial set up so that it can deliver upto the expectations of people. During the lawyers movement because of independence of judiciary was championed in every nook and corner of Pakistan. People, naturally, placed their all hopes at the door of supreme judiciary and expected to the extent of impossibility. In fact, judiciary was under swear criticism since long time for rescuing Bonaparte military generals and dictators. Judiciary not only validated the extra constitutional steps of dictators but also entrenched their grip over the affairs of country by inventing one and another theories to nationalize the tyranny and personalization of power. To cover their capricious and whimsical activities dictators appointed such people to the judicial offices who neither deserve nor competent enough to perform in accordance with the dictates of law. Therefore, there was bitter realization with regard to process of appointment and it was felt that the process of appointment of judges needs drastic changes. In this context eighteenth amendment inter alia incorporated judicial provisions which introduced a new system of appointment of Judges which is aimed to secure more independence for judiciary. The purpose of this paper is to cover the idea of independence of judiciary in Pakistan and to analyze the process of appointment of judges, particularly, after Eighteenth and Nineteenth Amendments.
