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Judges duties
The existence of a fearless and independent judiciary is all the more essential in a federal state. The Constitution distributes powers between the Center and the states. The judiciary decides disputes between the two. If judges are under the influence of the Centre, the states can’t think of getting any justice as judges will fail in discharging their duties impartially.
In case the judges are partial and timid, order in the state will come to see its lowest ebb. Judiciary is a watchdog and custodian of the law and the rights of people. People have no other way to raise their voice against the highhandedness of the government except the protection of the judiciary. In the absence of independent judiciary the Constitution will become a plaything, a virtual pros, in the hands of the people in power. A democratic government is the government by law. Administration is carried on not as per the whims and wishes of any individual. Judiciary is there so as to ascertain if a law has been violated or not. Only an independent judiciary can discharge this obligation rightly and effectively. Usually we see that it is only the law-abiding citizens who suffer at the hands of arrogant, corrupt, dishonest and perverted officials. These officials at their sweet will and whims, twist the arm of the law and interpret laws to suit their convenience. Such law abiding citizens have only one hope and that lies in an independent judiciary.
In Pakistan and in many countries efforts have been made to establish an independent and impartial judiciary. Judiciary can’t be free and impartial on its own. Certain factors play a vital role in this regard and if these factors are missing the protective tree and umbrella of judiciary will be rendered sapless and rootless and ultimately it would crumble down leading way to dictatorship.
Appointment of judges
Appointment of the judges would be on the basis of merit and no recommendation should carry any weightage whatsoever. Judges should not feel obliged to the appointing authority. Some people advocate that the judges should be appointed through election by the people as legislatures are elected. This method has some inherent defects. In such an election political parties are bound to play a significant role. The elected judges would try to remain faithful to the party that helped in their winning the election. People in general are not wise enough to judge the qualities of a person. Judges will do all right and wrong deed to get reelected. Lastly, to get elected they would employ all corrupt methods like ordinary law makers. Garner says, “Election lowers the character of the judiciary, tends to make a politician of the judge and subjects the judicial mind to strain which it is not always able to resist.” Similarly, if the appointment of judges is made by the legislature even then they will not be free to act independently. They will remain under the obligation of one political party or the other. Appointment by the executive is the most satisfactory method for the choice of the judges. The executive appoints only trained and skilled lawyers to the post of judges. Moreover, merit being the sole criterion in appointing the judges; it prompts the judges to be impartial and free of any bias. Though political considerations do play some part but that is not damaging.
A fixed and a reasonably long period of tenure will guarantee impartiality, If tenure is short the judges may adopt wrong methods to please the executive for reappointment. The power of removing a judge should not be concentrated in the hands of a single person. In Pakistan removing judges of High Court and Supreme Court is very complex phenomenon.
Salary of the judges
In this materialistic world money plays the most important role to corrupt a person. So the salary of the judges should be decent and they must be given all perks to lead a tension-free life. Worldly needs fulfilled will inculcate stability in the character of the judges. They will not fall an easy prey to the allurement of money. All the above mentioned criteria will go a long way in establishing an impartial and independent judiciary, the backbone of any democracy to work successfully.
High Court and the Supreme Court
When we talk of judiciary we usually talk of the High Court and the Supreme Court. The primary function of the courts is the resolution of disputes. Self help by force can’t prevail in any democratic set-up. This thinking is the very foundation of judiciary. The recent years have witnessed the constant trend of the expansion of the judicial role. Judicialization of society is on the increase. The concept of the welfare state has multiplied activities of the state and that has resulted into mutual clashes between party/parties in power and the opposition. The ruling party to keep its vote bank intact may adopt measures that go beyond the spirit of the Constitution. For example, the issue of office of profit has become a battling ground amongst various parties and the judiciary may have to intervene to let the dust settle down. Public Interest Litigation has also enhanced the activities and functions of judiciary. The courts have begun to take a more active role even in policy making. Consumer issues, environmentalism and civil rights have resulted into an increase in legislation and in return plethora of disputes has cropped up for the consideration of the judiciary. Many a time the legislatures leave many questions undecided and then the judiciary has to step into to fill the gaps. Review of legislation has given many new responsibilities to the courts. Courts shape the society through innovative and creative judgments. They educate and reprimand parties. Above all interdependence between the independent justice and the protection of human rights has changed the scenario. Human rights are futile and worthless if there is no mechanism to enforce them. Independent and impartial judiciary is imperative for that.
Functions of judiciary
Major functions of judiciary are: decision of disputes, interpretation of laws, protection of fundamental rights of the citizens, protection of the Constitution and so on. Many a time the courts perform the role of legislature. If the law is not clear or it does not cover the case, the judge decides the meaning of the law or creates new law. He adds flesh and blood to the dry bones of laws by his interpretations ar. judgments. In this way flaws are removed and gaps of the original Constitution are filled. Common sense does play an important role and helps a judge to reach a decision correctly. Such decisions become precedents for other judges. These precedents are judge-made laws.
Judiciary also performs advisory functions. The legislature can seek the judiciary’s advice when framing laws. Very recently a suggestion has been made to the President to seek expert advice from the Supreme Court regarding the legislation. It will not be wrong to say that where the executive fails, the judiciary makes the mare go. The judiciary has taken on itself a new role and that is it directs the executive to do this thing and not to do that thing. Things that influence day- to-day life of the citizens have attracted the attention of the judiciary. This has certainly laid extra burden on the courts. All this has made the independence of the judiciary all the more essential. The Court has started giving warnings to the executive either to do this thing in the welfare of the people or face consequences. Recently, the Lahore High Court series notice of forced kidney transplantation. Some people call it Judicial Activism. But this activism has proved that independence of judiciary can do anything. It can make the nation and its absence can mar it no alternative.
The noted jurist and former Attorney General opines that democracy was not heading in the right direction in Pakistan and if it were not for an independent judiciary it would have disappeared a long time ago. Isn’t it sufficient to tell the importance of an independent judiciary?
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