Perception of impartiality

The autonomy of judicial system in Pakistan

“Justice is not justice if it is not impartial and is not based on sound principles.” “Justice must not only be done, it must also be seen to be done.” These dictums are used quite so often by the apex judiciary, politicians and media in the country. Judiciary in Pakistan is often blamed for becoming a party to the proceedings in high level cases. Recent proceedings in Arsalan Iftikhar case and Kamran Faisal case are stated as examples of alleged bias on the part of judiciary in Pakistan. The letter written by NAB Chief speaks volumes of the suffocation felt by the officers of executive in Pakistan. However, should the judiciary tone down itself when the executive in Pakistan is incompetent, corrupt and inept in performing their duties, or should it carry on with full vigour for the protection of constitutional rights of the people of Pakistan? Whatever the case may be, the judicial system of the country must remain impartial in providing justice to the people.

The real test of a judicial system lies in the notion of impartiality. The concept of fair trial occupies a prominent place in the constitution of Pakistan and the constitutional guarantee of due process of law outlines the importance of a strong judicial system. The judiciary thus has to walk on very thin rope in maintaining its perception of impartiality. The requirements of an independent and impartial judiciary include both subjective and objective elements. Can the judiciary in Pakistan be deemed successful in maintaining its perception of impartiality? Does the norm of judicial activism affect the principle of neutrality? Have we moved forward in providing justice to ordinary people? Questions like these loom in the minds of members of judiciary and people of legal fraternity in Pakistan.

The principle of no bias is the cornerstone of natural justice system and the members of judicial process thus need to be very conscious in maintaining their impartiality. However, the judiciary in Pakistan is faced with tough questions related to its impartiality in giving judgments with reference to the current judicial activism in the country. The appearance of bias on part of decision makers clearly undermines public confidence in the judicial system. The countries with weak governance structures often face issues related to the working of different organs of state.

Recent sacking of the Chief Justice of Sri Lanka clearly validates the hypothesis in relation to impartiality. Though the method adopted for the removal of chief justice in Sri Lanka is facing severe criticism, the judge mired in serious allegations relating to her conflicting interests in matters related to her decision making. She was allegedly found guilty of tampering with a case involving a company from which her sister bought an apartment, of failing to declare dormant bank accounts, and of staying in office while her husband faced a bribery charge.

The case of Pakistan is not different than that of Sri Lanka. In 2007, the judicial crisis in Pakistan became the cause of a stronger judicial system in the country, the system which is now accused of being involved in judicial activism. The courts so far have lived up to the expectations of the people by challenging the stereotypical autocratic approach towards governance by politicians. The executive is being held accountable for its wrongdoings and the legislature is kept on toes by a constant reminder about the protection of constitutional norms. The shift in judiciary’s approach leaves much to be answered. How and for what purpose this shift is actually going to lay down, for one.

The concept of judicial independence has been described in golden letters in one of the judgments of the Supreme Court of India. “To keep the stream of justice clean and pure, the judge must be endowed with sterling character, impeccable integrity and upright behaviour. Erosion thereof would undermine the efficacy of the rule of law and the working of the constitution itself. The judges of higher echelons, therefore, should not be mere men of clay with all the frailties and foibles, human failings and weak character which may be found in those in other walks of life.”

The judges of the superior courts of Pakistan are well aware of their responsibilities. Historically, judiciary in Pakistan is held responsible for providing safe exits to dictators. The current Supreme Court of Pakistan has publicly buried the infamous doctrine of necessity for good. It would be ironic if the same Supreme Court appeared to usurp the legislative powers of the Parliament under the pretense of interpretation of the constitution and other statutes.

Has the Supreme Court of Pakistan fulfilled its constitutional obligations by following the norms of “due process” and “fair trial”? Judgments in NRO case, 18th amendment case and so on show the success of judicial activism in the country. However, the fate of democracy in Pakistan remains subject to continuation of democracy. The government may well be accused of incompetence in controlling law and order but still all the organs of the state have to work together to maintain the balance of power. The executive and legislature are being held accountable for their actions through judgments of the Supreme Court and High Courts of Pakistan. But now is also the time to move forward and set limits for the judiciary too. Otherwise, the thin line of impartiality will be crossed and it will create chaos. Because as states regulate judicial conduct less strictly, judges will seize the opportunity to act less impartially, or, at the very least, judges will be perceived as acting less impartially when they are less strictly regulated.

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