SUPERIOR JUDGES’ COMMITMENT TO JUDICIAL INDEPENDENCE IN PAKISTAN 1Amanullah Shah, 1Muhammad Iqbal Khan, 2Mobina Mahsood 1Law College, Gomal University, Dera Ismail Khan(KPK) Pakistan 2Lower Courts , Dera Ismail Khan(KPK) Pakistan ABSTRACT Independence of judiciary cannot depend solely on the structure of the government and the judiciary’s formal role within it. It also depends on the judges themselves. This paper aims at examining the judicial commitment to independence of judiciary in Pakistan. This study covers collective role as well as individual role of the judges of the superior courts in Pakistan from 1947 till the restoration of Judges in March 2009. It elaborates the importance of integrity and character of the individual judges for judicial independence. This paper critically studies the role of those judges who by their behaviour undermined the independence of the judiciary and severely damaged the confidence of the public in the judiciary of Pakistan. INTRODUCTION corruption and to make truly Independence of judiciary does not mean independent decisions. Prof. Dam has merely independence from outside rightly referred to the British influences but also from those within. A constitutional system, in support of his former justice of India, Mr. Verma, is of view that behavioral independence is the opinion that dangers to judiciary more important and more effective than from within have much larger and structural independence in the context of greater potential to harm than dangers independence of judiciary (Dam, 2006). from outside (Verma, 2000). Professor The British judiciary has not Dam differentiates between structural traditionally been structurally independence and behavioral independent is shown by the independence. The latter is more intermingling of judicial, executive and important than the former (Dam, 2006). legislative functions at the highest level. The former term as used here, refers to Until the Constitutional Reform Act the way in which government is 2005 was passed, the Law Lords who constitutionally structured. Does that formed the Highest Appellate Court in structure secure independence of the British Judiciary also sat in the judiciary? Behavioral independence House of Lords – the upper house of the resides in the judge as a person. Is the British Parliament. More amazing was judge independent? An independent the position of Lord Chancellor, who judge is not just dispassionate and free presided over the Law Lords as well as from bias, but willing to take difficult the House of Lords and was a member of position to resist political or any external the cabinet also at the same time. The pressure, to reject any temptation of Law Lords transferred to the newly Gomal University Journal of Research, 27(2). December, 2011 55 Shah et al., Superior Judges Commitment created Supreme Court in 2009 under the removed by the military government in Reform Act 2005. That is why it is said 1977. The whole process was accepted that the structural arrangement in Britain by the judiciary with very ease without made structural judicial independence any murmur on its part. The judges of unlikely, yet still the fact is that British superior courts had been asked four judiciary, particularly at the highest times (i.e. in 1977, 1981, 2000 and level, was known for its independence 2007) by the military dictators to take a (because of behavioral independence). new oath under Provisional Behavioral independence was acquired Constitutional Order (PCO). They have after a long struggle in which many never been able to act collectively and to British judges were willing to stand up resist as an institution, the executives to the British sovereign at great personal measures undermining the prestige as risk during the Tudor and Stuart periods, wells as independence of the judiciary. even before the Act of Settlement of Each time except in 1977, a good 1701, gave judges life tenure on good number of judges of the superior behavior (Dam, 2006). judiciary were arbitrarily removed by the military regime, simply not inviting Although the independence of the them to take new oath. Their only fault British judicial system was established was that they were not under the by behavioral independence rather than influence of the government and were structural independence, it does not apparently known as independent follow that a developing country like judges. There were also certain noble Pakistan can afford to neglect structural judges who individually refused to take independence. Structural independence new oath under PCO and preferred to and behavioral independence can sacrifice their prestigious service at the support each other and in a country altar of their conscience. seeking to overcome legalized abuse of the executive authority, it is mars to see The most shocking and painful episode judicial independence “fully secured” if was the oath taking of several judges of one does not foster both. the superior judiciary under PCO 2007, promulgated on November 3, 2007 by JUDICIARY AS AN INSTITUTION General Musharraf as Chief of Army The preceding history of Pakistan tells Staff. Anticipating something unusual, the fact that judges could not develop the several senior judges of the Supreme judiciary as an institution. They never Court including the Chief Justice responded collectively as an institution remained in the Supreme Court till late to a threat or direct interference in the afternoon on Saturday (November 3, independence of judiciary. For example 2007). As they came to know about the the Chief Justice of Pakistan, Justice declaration of Extra-Constitutional Yaqoob Ali Khan was arbitrarily Emergency and promulgation of PCO Gomal University Journal of Research, 27(2). December, 2011 56 Shah et al., Superior Judges Commitment 2007, they immediately assembled in a judges also switched over to the court room. In an unprecedented move, government’s side. At the end 5 seven judges of the Supreme Court Supreme Court judges and 40 High headed by Chief Justice Iftikhar Courts judges took oath under PCO Muhammad Choudhry overturned the 2007. A very good opportunity of PCO and restrained the Chief of Army collective stand as an institution has Staff, Corps Commanders, Staff Officers been missed by the judges who preferred and other civil and military officers from their personal perks and privileges over acting under PCO. The court directed the institutional interests. President Musharraf and Prime Minister Shaukat Aziz not to take any action Judges of the superior judiciary not only contrary to the independence of the failed to collectively resist the onslaught judiciary and asked the judges of the on the independence of judiciary but Supreme Court and the High Courts, they have been so docile and passive that including their Chief Justices, not to take they could not protest even at an oath under the PCO or follow any humiliation of their brother judges. For other extra-constitutional step. This example, during General Yahya Khan’s order of the court was distributed among martial law in 1969, as Sub-Martial Law the media men present at the time Administrator, General Abu Bakr (Dawn, The News, The Nation etc dated Usman Mitha issued a notice of November 4, 2007). The same was contempt of martial law to two justices communicated to all Chief Justices and of the West Pakistan High Court and judges of the Supreme Court and High both judges were asked to appear before Courts (The News, 4-11-2007). In spite the General. They were blamed in the of the clear order from the Supreme notice for staying an order of military Court, there were certain judges who court. According to Justice Nasim took new oath under PCO without any Hassan Shah – one of the two judges to hesitation and in complete violation of whom the notice was issued – almost all the Supreme Court’s direction. Though judges of the West Pakistan High Court this time majority of the judges resisted kept silent and was avoiding taking open the powerful establishment but their stand and supporting their colleagues stand was destroyed by some self- against General Mitha (Shah, 1997). centered judges. On November 3, 2007, Another shocking episode of judges’ 13 judges out of 17 Supreme Court disgrace happened in 1981, during judges including the Chief Justice of General Zia’s regime, where three Pakistan and 49 judges out of 77 judges judges of the Lahore High Court were of the High Courts refused to take oath returned from the Governor House under PCO. Justice Abdul Hamid because they were not to be given oath. Dogger was sworn in as Chief Justice of Other brother judges present including Pakistan. Within few days some other the Chief Justice of the Lahore High Gomal University Journal of Research, 27(2). December, 2011 57 Shah et al., Superior Judges Commitment Court did not take any stand for the declined to take oath under PCO? In a colleagues who were so blatantly society like Pakistan, even a dictator insulted and humiliated (Khan, 2001). would think a hundred times before sacking the entire judiciary. In the days On March 9 2007, the Chief Justice of of General Ayub Khan’s regime, where Pakistan, Justice Iftikhar Muhammad the Chief Justice of Lahore High Court Chaudhry was summoned by General (one of the noble exceptions) learnt that Musharraf to his army office, there he a writ issued by the High Court was not was pressured to quit. On the refusal of going to be honored by the government, the Chief Justice to do accordingly, he the Chief Justice threatened Ayub Khan was detained in the army office up to that the whole Court would resign in five hours. In the meanwhile another bloc. It is said that Chief Justice was judge of the Supreme Court, Justice carrying the letters of resignations of the Javid Iqbal, was appointed and sworn in judges in his pocket.