Judicial freedom by Tufail Husain Malik

Tufail Husain Malik

‘NEW CJ introduces reforms on first day in office’ was the headline on June 29, 2016, in this paper when Mansoor Ali Shah, chief justice of the Lahore High Court, took his seat at the helm of judicial affairs in Punjab. With 30 judicial officers sent on ‘special duty’ right from the beginning due to a “question mark on them”, the ambience in the legal profession echoed Chief Justice Shah’s resolve to ensure “merciless

accountability” in the judiciary itself, as he pledged strict action against errant members. Very few can doubt the integrity of the Punjab chief justice as he challenges the status quo within the legal profession.

However, the recent episode of a courtroom soap opera (where a lawyer disrespected an additional sessions judge), highlighted the challenges faced by the judiciary on a regular basis. This strain between the bar and bench, if left unchecked, is bound to prophesy bad tidings for the independence of one of the most important pillars of the state.

There are stories of some lawyers adopting threatening attitudes towards judges up and down the country. Why do some lawyers stoop to such an approach? It appears that such tactics ensure that the requested relief is granted to a client of a relatively powerful lawyer from a relatively weaker judge. On the other hand, sheer reliance on one’s intellectual abilities or case preparation may not have the desired outcomes.

We must appreciate that until very recently a serious question mark hung over the independence of the judiciary. Due credit must be given to the 2007 lawyers’ movement; the independence of the judiciary was earned in a country where the executive branch manipulated most of the powers.

Lawyers misbehaving with judges must be dealt with strictly.

As far as the working of an effective justice system is concerned, the bar and bench must ensure that there is no compromise on the independence of the bench. The first principle of the United Nations’ Basic Principles on the Independence of the Judiciary clearly states that “the independence of the judiciary shall be guaranteed by the state and enshrined in the constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary”.

The bar needs to promote and inculcate in the minds of its members the idea that any attack on or abuse of a judge is an attack on one of the most important cornerstones of democracy in the independence and impartiality of judges.

The independence of the judiciary, in its true sense, means not only that the judges are protected and free “from improper pressure by the executive or the legislature, by individual litigants, particular pressure groups, the media and self-interest” but also from negative pressure exerted by “other judges, in particular more senior judges”. While senior judges may have administrative powers over the junior judges, this must not impact the functions of the judiciary and the decisions of judges on a case-to-case basis.

Thus junior judges cannot be directed to decide certain cases in a particular way or pass certain types of punishment for certain types of offences. Any case tried in front of any judge, regardless of his seniority, is at the sole discretion of that judge alone.

The Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region signed in 1995 by the then chief justice Sajjad Ali Shah states that “the judiciary shall decide matters before it in accordance with its impartial assessment of the facts and its understanding of the law without imp­roper influences, direct or indirect, from any source”.

The bar in its role as standard bearer of the independence of the judiciary must make sure that ‘any source’ does not involve lawyers and that any such involvement should see the strictest disciplinary measures being meted out to the offenders.

In Pakistan, we are mired in a state of affairs where there are literally no effective policies by governments to ensure the vibrancy and strength of state institutions. Stability of institutions must come from the institutions themselves including the judiciary. It must be supported by the bar.

At the same time, to avoid criticism, the judiciary needs to make sure that there is a little room for complaints against the appointments and competence of judges. The judiciary’s conduct must be exemplary at all levels. This must be evident in the approach of judges coming to hear the cases; they must be fully prepared to deal with any situation with dignity, professionalism and in a composed manner.

At the end of the day the public needs an effective ‘justice system’ and not ‘just a system’ which seems to have been in place for the past seven decades.

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