Malik Abdul Latif Tahir
Independence of Judiciary and Pakistan
The independence of the judiciary in Pakistan is a vital issue that has implications for the country’s democracy, the rule of law, human rights, and stability. The judiciary is supposed to be an independent and impartial arbiter of justice, free from any interference or influence from the executive, the legislature, or any other external forces. However, the history of Pakistan shows that the judiciary has often been subjected to various forms of pressure, manipulation, and subversion by the political and military elites, as well as by religious and sectarian groups. This has undermined the credibility, integrity, and effectiveness of the judicial system and has eroded the public trust and confidence in the courts.
The significance of judicial independence in Pakistan can be explained from various perspectives.
First, judicial independence is essential for upholding the Constitution and the fundamental rights of the citizens. The Constitution of Pakistan entrusts the superior judiciary with the obligation to preserve, protect and defend the constitution. The judiciary also has the power of judicial review, which enables it to examine the validity and constitutionality of the laws and actions of the other branches of government. The judiciary can also issue writs of habeas corpus, mandamus, prohibition, quo warranto, and certiorari to protect the rights and liberties of individuals against arbitrary or unlawful detention, discrimination, abuse of power, or violation of due process. With judicial independence, these constitutional functions and powers would be protected from the interference or influence of other actors.
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Second, judicial independence is crucial for maintaining the separation of powers and checks and balances among the three branches of government. The separation of powers is a principle that divides the state authority into legislative, executive, and judicial branches, each with its own functions and responsibilities. The checks and balances are mechanisms that prevent any branch from becoming too powerful or dominant over the others. The judiciary plays a key role in ensuring that each branch acts within its constitutional limits and respects the authority of the others. The judiciary also acts as a guardian of democracy by ensuring free and fair elections, resolving electoral disputes, and adjudicating on matters related to political parties, candidates, and voters. Without judicial independence, the separation of powers and checks and balances would be distorted or disrupted by the encroachment or domination of one branch over the others.
Third, judicial independence is important for establishing the rule of law and accountability in society. The rule of law is a principle that requires that all persons and institutions are subject to and accountable to the law that is fairly applied and enforced. The rule of law also implies that no one is above the law and that everyone is equal before the law. The judiciary is responsible for interpreting and applying the law in a consistent and impartial manner, regardless of the status or position of the parties involved. The judiciary also holds the other branches of government accountable for their actions and decisions by reviewing their legality and constitutionality. Without judicial independence, the rule of law and accountability would be undermined or violated by the prevalence of corruption, nepotism, favouritism, or impunity in society.
Fourth, judicial independence is vital for ensuring peace and stability in the country. Pakistan is a diverse and complex country with various ethnic, linguistic, religious, sectarian, regional, and ideological groups. These groups often have conflicting interests and demands that may lead to violence or unrest. The judiciary can play a constructive role in resolving these conflicts peacefully through dialogue, mediation, arbitration, or adjudication. The judiciary can also promote social harmony and cohesion by protecting the rights and interests of minorities, women, children, marginalized groups, and vulnerable sections of society. Without judicial independence, these conflicts would escalate or persist without resolution or redress. This would create more chaos or instability in the country.
Therefore, judicial independence in Pakistan is a significant issue that has multiple dimensions and implications. Judicial independence is essential for upholding the Constitution and fundamental rights, maintaining separation of powers and checks and balances, establishing rule of law accountability, and ensuring peace and stability in the country. However, judicial independence has often been challenged or threatened by various factors such as political interference, military intervention, religious extremism, media pressure, public opinion, etc. Therefore, it is imperative that all stakeholders respect and support judicial independence as a cornerstone of democracy development in Pakistan.
Reforming the judiciary in Pakistan is a complex and challenging task that requires a holistic and collaborative approach from all stakeholders, including the government, the judiciary, the legal fraternity, the civil society, and the international community. The following are the key points to reform the judiciary in Pakistan.
Strengthening the judicial independence and accountability: The judiciary should be free from any interference or influence from the executive, the legislature, or any other external forces. The judiciary should also be accountable for its performance and conduct and subject to effective oversight and disciplinary mechanisms. The appointment, promotion, and removal of judges should be based on merit, transparency, and fairness. The judicial budget should be adequate and autonomous, and the judicial salaries and benefits should be commensurate with their responsibilities and qualifications.
Improving judicial efficiency and quality: The judiciary should adopt modern case management systems and technology to rationalize court processes, reduce delays, and improve transparency. The judiciary should also introduce alternative dispute resolution (ADR) mechanisms, such as mediation and arbitration, to provide quicker and cost-effective dispute resolution methods. The judiciary should also enhance its skills and knowledge by providing ongoing education and training programs for judges and legal professionals. The judiciary should also ensure that its decisions are consistent, coherent, and well-reasoned and that they reflect the current legal principles and social realities.
Enhancing judicial accessibility and responsiveness: The judiciary should improve access to justice for marginalized communities by providing legal aid, establishing legal aid centres, and promoting pro bono services1. The judiciary should also ensure that its services are affordable, convenient, and user-friendly for all citizens. The judiciary should also address the diverse needs and expectations of different groups in society, such as women, children, minorities, vulnerable sections, etc. The judiciary should also foster public trust and confidence by engaging in effective communication and outreach activities with the public.
Reforming the judicial laws and procedures: The judiciary should revise and update the outdated and faulty laws governing economic transactions, land revenue, criminal justice, etc., to make them applicable in the present world. The judiciary should also simplify and streamline the judicial laws and procedures to make them more uniform and efficient. The judiciary should also harmonize the judicial laws and procedures with the constitutional provisions and international standards of human rights.
Promoting judicial innovation and creativity: The judiciary should embrace innovation and creativity in its functions and services. The judiciary should use modern tools and technology in the investigation process, such as biometrics, forensics, digital evidence, etc.4. The judiciary should also explore new ways of delivering justice, such as online courts, mobile courts, etc. The judiciary should also encourage research and development in the field of law and justice.
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