The role of the judiciary

The judiciary as a custodian of the constitution and guarantor of the fundamental rights of the people is not only considered the most sanctimonious organ of the state machinery but also a foundation on which civilisations are built. All philosophies ungrudgingly acknowledge the independence of the judiciary as a means to ensure social amity, political development, peace and progress in any society.

The independence of the judiciary, however, does not imply absolute and unbridled freedom and trespassing into the domain of the responsibilities of the other institutions of the state. The judiciary, in the discharge of its constitutional role, is bound to respect the principle of the trichotomy of powers enshrined in the constitution itself. Similarly, the other institutions of the state are supposed to remain within the confines of their constitutional and legal powers to promote the wellbeing of the state. Any deviation from this principle by any institution is bound to create an ambience of confrontation between the institutions – to the detriment of the national interest.

Unfortunately, the hopes kindled in the backdrop of the lawyers’ movement for an independent judiciary have not materialised. A close scrutiny of the decisions given by the apex court since the restoration of the deposed judges reveals that the pendulum has shifted from one extreme to another. From judicial passivism the judiciary has moved towards judicial activism, prone to the propensity to play to the gallery rather than strict compliance and respect for the constitution and the law.

The incumbent Chief Election Commissioner, Justice Sardar Muhammad Raza, in a November, 2012 article on the subject of judicial independence and the conduct of judges, opined that the independence of the judiciary referred to the judiciary becoming independent of the dictates of the government and other influences and dealing with cases strictly in according with law and constitution. According to him, “In the last six years what I have been able to conclude is that only the bars have become independent”.

In regard to the conduct of a judge while hearing cases before them, Justice Muhammad Raza said: “When a judge makes remarks in court, relevant or irrelevant but mostly irrelevant, the interested parties can start exploiting either the judge or the situation. Judges are not expected to cultivate biases and prejudices in the cases they hear as they are not expected to speak unnecessarily in the court. It is not their bounden duty to make comments on every topic even if alien to their comprehension.”

His advice to the judges was: “Don’t speak in the court and do not make remarks that entail expression of opinion”.

The Supreme Judicial Council issued a code of conduct for the judges of the Supreme Court and the high courts on September 2, 2009. Article IV of the code stipulates: “To ensure that justice is not only done but is seen to be done, a judge must avoid all possibility of his opinion or action in any case”. Article V says: “Functioning as he does in full view of the public, the judge gets thereby all the publicity that is good for him. He should not seek more, in particular, he should not engage in any public controversy, least of all on a political question, notwithstanding that it involves a question of law”.

Former CJ Iftikhar Mohammad Chaudhry set the tone for judicial activism. That tradition has been kept up by the judges of the superior courts in disregard to the code of conduct issued by the Supreme Judicial Council and the stipulations of an honourable former judge of the SC.

Reportedly, Chief Justice Jamali while hearing a case regarding the construction of the Orange Line Metro Train Project last Thursday remarked: “There is monarchy in the name of democracy and bad governance under the garb of good governance in Pakistan. People need to stand up against these actions”. His remarks almost constitute an indictment of the incumbent governments’ democratic credentials. They also have political repercussions.

In view of the extensive coverage of the remarks by the media and the reaction of political opponents of the government who have taken the remarks as an endorsement of their view, the SC has issued a clarification maintaining that the CJ did not ask the people to rise against the government as reported by a section of the press. According to the clarification, the CJ remarked that “People should carefully assess the situation and prudently use their right to vote while electing their representatives”. The clarification did not say anything about the remarks that there was monarchy in the name of democracy and bad governance in the name of good governance.

What we need at the moment is for state institutions to function strictly according to the constitution, particularly the judiciary. Any indiscretion on its part or on the part of the judges can undermine the executive. We have seen the consequences of such indiscretions in the past.

If the judiciary functions in accordance with the constitution and dispenses justice in conformity with the internationally known principles of jurisprudence then no power on earth can harm the country. The significance of the judiciary in nation-building and its role in nurturing patriotism can hardly be over-emphasised.

The writer is a freelance contributor. Email: ashpak10@gmail.com