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Independence of judiciary



After 40 years of serving as a judge, I still ponder and reflect as to whether our judiciary is truly independent or not. Sixty-five years back, the nation became independent and it has spent all these years trying to discover whether the judiciary is independent
or not.

I wonder who had to remain in the doldrums throughout this period, the nation or the judiciary.

Two-and-a-half-years back, I was accorded a full court reference on the eve of my retirement from the Supreme Court of Pakistan. Allow me to repeat, at least, what memory retains. I had said that despite the fact that the term 'independence of judiciary' is a jewel in the crown of the Constitution, yet it is a misnomer.

The independence, in fact and in practice, is referable not to the abstract but to the judges who constitute the judiciary.

If judges are independent, honest, fair, God-fearing and blessed with a judicious approach toward the lis (lawsuit) pending before them, the judiciary is bound to be independent.

If the judges are dependent, dishonest, unfair, boss-fearing and infected with a whimsical approach towards every lis that they come across, the judiciary is not
independent.

Rather it is then not a judiciary at all.
Mostly, the independence of the judiciary refers to becoming independent of the dictates of the government. There is no doubt that this is one of the requirements of being independent but it is not the absolute in itself.

Experience from various countries and even from Pakistan has shown that apart from the government, influence can also be exercised by politicians and the media. To achieve independence, judges have to defend themselves on all the fronts, which has become much more difficult now.

Lord Denning, a famous English judge, when asked as to what might be the qualities of a good judge, replied tersely: "Above all, a good judge must be a thorough gentleman and if he knows a bit of law, all the better."

This sentence provides the complete context. Gentility cannot be acquired by becoming a judge. It is something inherent in your personality and also comes from your background.

Who you are; how your parents brought you up; what type of education did you receive; what type of environment surrounded you when you were in the process of learning, perceiving and conceptualizing; what teachings did you receive about religion, morality, fair play and your fellow human beings? Judges are influenced in the decisions they make by their upbringing and experience.

To assess all this is the responsibility of those whose job it is to select judges. Only a gentleman would prove to be an independent judge. Judges shall always be expected to administer a patient hearing to the parties. It is in their interest.

They shall grasp the law as well as facts. With the passage of time, they shall know who is a good and genuine lawyer and who merely wants to exploit the slogans of 'zinda baad' and 'murda baad'.

A good and patient hearing would inculcate a habit of nurturing a judicial approach. A judicial officer is not expected to approach the court with any preconceived notions. An open mind, which is very rare and a judicial unconcern, nonexistent in many people, constitute the virtues that make independent judges.
 
Judge not that ye be not judged.  Don't speak in the court and don't make remarks that entail expression of opinion. If media reports are correct, we know of numerous speaker judges who decide the case on the first day of hearing without actually hearing it.

By doing so, they often make mistakes. Sometimes these mistakes are publicly identified and overruled by the courts of appeal, with all the powers to substitute mistakes of their own.

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. In high profile cases involving the government and politicians, as the case may be, they endeavour to grind their axe to the maximum.

The only person defamed, disrespected and distrusted in such a scenario is the judge alone. After all, judges of an independent judiciary have no agenda of their own. Judges are expected to do justice in accordance with the law and not by making
the law.

For centuries, English judges deceived each other into thinking that they really applied the law made by parliament, that their job was only to interpret law and not to make it.

Judges are expected not to cultivate biases and prejudices in the cases they hear. High judicial status immunises men and women from childish displays of petulance and prejudice.


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