Malik M Ashraf
THE judiciary as a custodian of the constitution and guarantor of the fundamental rights of the people is not only considered as the most sanctimonious organ of the state machinery but also a foundation on which civilizations are built. All the religious and political philosophies ungrudgingly acknowledge and espouse the independence of the judiciary as a means to ensure social amity, political development, peace and progress in any society; lack of which can cause anarchy, chaos and upheavals.
The independence of 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 and judges in the discharge of their constitutional role are bound to respect the principle of tri-chotomy 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 well being 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 interests.
Unfortunately the hopes kindled in the backdrop of lawyers movement for an independent judiciary have not materialized. 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, rather than strict compliance and respect for the constitution and law. The incumbent Chief Election Commissioner Justice Sardar Muhammad Raza dilating on the subject of judicial independence and the conduct of the judges in his article published in newspapers on Nov 17, 2012 opined that Independence of judiciary refers to becoming independent of the dictates of the government and other influences and dealing with cases strictly in according with law and constitution. His observation regarding judiciary was “In the last six years what I have been able to conclude is that only the bars have become independent”. In regards to the conduct of judge while hearing cases before them he remarked “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 High courts on Sept 2, 2009. Article IV of the code stipulates “To ensure that the 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 Chief Justice Iftikhar Mohammad Chaudhry actually set the tone for judicial activism and playing to the gallery by making remarks and statements that had political connotations. He relished hitting the headlines every day. 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 Anwar Zaheer Jamali while hearing a case regarding construction of Orange Line Metro Train Project last Thursday remarked “There is monarchy in the name democracy and bad governance under the garb of good governance in Pakistan”.
His remarks almost constitute an indictment of the incumbent government in regards to its democratic credentials and are a clear transgression into the domain of the executive. They also have political repercussions. One would wish that the judges act like judges and avoid delving into areas which are beyond their domain of jurisdiction..
— The writer is freelance columnist based in Islamabad.