In any free country or democratic society, the judiciary is that vital organ of the state that plays the leading role in upholding the rule of law, providing justice to all citizens and protecting the rights and freedoms of all members of the society. The judicial branch of the state is supposed to be a bulwark against the abuse of power, and it is expected to ensure that those officials in high positions who are capable of a misuse of power are not above the law of the land. Recent events in the judicial branch, especially at the level of the Islamabad High Court (IHC) and the Supreme Court of Pakistan (SCP) have ignited a fierce debate and this judicial crisis now is becoming more dreadful than the ongoing political crisis in the country. The crisis has exploded due to the alleged or perceived partial role played by some judges, that has severely damaged the integrity and impartiality of the entire judicial system of the country.
The current judicial crisis reached its peak when six honourable judges of the IHC wrote a letter to the Supreme Judicial Council (SJC). This letter was in fact a charge sheet or a list of complaints that accused some officials of the powerful intelligence agencies of the country of interference and use of pressure tactics to influence judgments in some high profile cases. This letter by the judges resulted in a heated debate in judicial and political circles. The judges wrote:
“We are writing to seek guidance from the Supreme Judicial Council (SJC) with regard to the duty of a judge to report and respond to actions on part of members of the executive, including operatives of intelligence agencies, that seek to interfere with discharge of his/her official functions and qualify as intimidation, as well as the duty to report any such actions that come to his/her attention in relation to colleagues and/or members of the courts that the High Court supervises.”
Independence and impartiality of the judiciary is the fundamental and foremost requirement of any democratic society or a political system and if this system is compromised, the entire political system could collapse like a house of cards. Any interference in the judicial system from any quarters will jeopardize the fulfilment of fundamental and civic rights of the people and erode the democratic ideals of society leading to chaos and confusion.
The entire nation waits with bated breath to see the reactions of the Supreme Court, Pakistan Bar Council, Provincial Bar Councils, Supreme Court Bar Association and how they will stand with the judiciary against the alleged unwanted interference by some powerful organs of the state. This letter is not written at the personal whim of some judicial officials, but concerns the fundamental rights and freedoms of society – and so it has to be taken extremely seriously, if we are to ensure the protection of fundamental rights for all times to come, as enshrined in the constitution of Pakistan.
Pakistan's constitution itself has laid down in its preamble that the independence of the judiciary “Shall be fully secured.” While taking their oath of office, a judge solemnly swears on the Holy Quran “That I will abide by the code of conduct issued by the Supreme Judicial Council; that I will preserve, protect and defend the Constitution of the Islamic Republic of Pakistan; and that, in all circumstances, I will do right to all manner of people, according to law, without fear or favour, affection or ill-will.”
Together with others, Article 4 of the Constitution further protects the rights of the individuals. It stipulates that “to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan, in particular, no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law; no person shall be prevented from or be hindered in doing that which is not prohibited by law; and no person shall be compelled to do that which the law does not require him to do.”
The Supreme Court of Pakistan has in the past been hailed and glorified as a beacon of hope and justice, but sadly enough, in recent years, it has been at the receiving end of some bitter criticism and has been accused of playing in the hands of powerful individuals and organizations – and in doing so, seriously compromising the rule of the judiciary as independent and impartial law givers. A strong perception has been created that the Supreme Court has now become a tool in the hands of some very powerful figures to promote their interests and suppress all dissenting voices. In fact, the very obvious partial role played by some members of the judiciary has resulted in a severe erosion of trust from the public.
Since the time of Justice Muhammad Munir, who invoked the infamous “law of necessity” and thus provided cover to subversion of the constitution, powerful politicians and members of the executive have been accused of manipulating the judicial system to harass and intimidate their political opponents. This widespread practice has now created an environment where justice is not done impartially or fairly, but is influenced by the wishes of those holding the reins of political and executive power. Another perception regarding the judiciary is that they indulge in a form of selective accountability and they seem to target some individuals on the wrong side of powerful forces, while totally neglecting the wrongdoings of people on the right side of the people in power.
When the judiciary appears to be suppressing all voices of dissent, it again raises a question mark about the role of the judiciary. As such, the recent role of the judiciary has severely depleted the trust in the judicial system and the common person today has little faith in its ability to provide justice in a fair and impartial manner.
If they are to reverse this process and restore the crucial independence of the institution that they represent, judges will have to commit themselves to deciding cases on the basis of the law and the constitution – and not on the dictates of political pressures.