Whither Judiciary?

“We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our property and our liberty and our property under the Constitution."

— Charles Evans Hughes (American jurist and statesman. 1862-1948)

From suspension of constitution to judges’ elevation, suspension, corruption, detention, assertion to desertion, denial of justice, untimely hiring and firing of judges from lower cadre to high profile judges for coup de main, molding, holding & folding of judicial system according to personal desires & long term beneficiaries are few but main painful provisions prevailing in the judicial lobby of Pakistan.

Though they are very few but easy to take flake modus operandi or customary facts but if some one employ all the guts to intervene and to found out more about crippled judiciary in our nation he may explore different negative as well as surprisingly positive dimensions intervening in the major bound to be judicious institute of Pakistan i.e. judiciary than I had depicted or rather provide a foggy silhouette over Pakistan’s superior but mostly in chained legal platform.

Therefore it is difficult to deny all the accusations regarding prevailing judicial spheres beyond suspicion and is totally out of political comprehensions. In broader perspective the judicial status quo is greatly compensated by the political hegemony. As in anonymous perception “Anyone who says they are not interested in politics is like drowning man who insists he is not interested in water.” Hence neglecting judges own pre-occupied denominations is totally out of question if not many but few justice providers may be engaged in dilapidating judicial system of Pakistan.

Among, all the entire Executive, Legislative & Judicial institution of the nation, Judiciary contains prime status of the state, therefore should be kept independent of the other organs of the government for its long rum activation, protection and implementation of the constitution and providing easy access of individual rights for minority and majority. Besides dichotomy, ill-will interference of the executive branch and frequent suspending or amending constitutional provisions provides non-conducive environment in its developing progress.

Unfortunately, in case of Pakistan though dozens of attempts were made for maximum judicial superiority, yet its liberty is not guaranteed by the executive cum legislative plenipotentiaries. Inter alia constitution is often taken for-granted each time new assembly is assembled or coup d’etat had griped the democratic institutions in not so humanitarian grounds.

By the grace of power politics, from 1956 to 1962 and then 1973 constitutional amalgamation, & suspension under different military cum democratic regimes and above all the injections of (Ill) Legal Framework Order (LFO) and the uninvited individually promulgated amendments, what have not seen this fragile cum easily hijacked organ of the state. This widely exercised scenario depicts that the constitutional law and the rule of law are either denied or blatantly rejected by the organizers, providers, developers as well as the intruders within and outside judicial jurisdiction of Pakistan. So expecting justice from unjust environment is like putting cart before the horse.

While reading “Judges Case And Judiciary,” by Justice (R) Abdul Razzak A. Thahim one may come across scores of facts and figures under which judges positions were challenged, shuffling high cadre judges with seniors as “judges usurpation” while raising question of seniority gives a perplexing phenomenon’s engaged in judicial scope where it is too difficult to judge who is who & what is what. No wonder why justice is delayed and denied due to extreme irritation with in the supreme authority of judicial lobby.

As for democratic legitimacy, judicious justice via astute jury is the prime remedy to remove dilapidated geo-political cum economic fluctuations, inter alia separation of judiciary from autocracy is highly desired in this regard. However complete separation of legislative branch to the executive department may again arouse the aristocracy within their limitations, therefore partial independence is enough to run the smooth administration.

Notwithstanding judiciary in Pakistan is always considered the coin of vantage whenever ad infinitum prolonged powers are desired. From Supreme Court, High Court of each province, Federal Shariat Court to the lower dimensions i.e. Subordinate Judiciary (Civil & Criminal Courts, Revenue Courts, and Special Courts & Service Tribunals fluctuations can be made if not from the beginning then at lower level via improper channels that causes measurable excruciate within the judicial parameters.

Under the Judges Order 2000 judiciary’s superiority cum seniority was once again dissected when judges were instructed to take fresh oath of allegiance under military imposed Provisional Constitutional Order. On refusal of the imposed proposal reshuffling was observed at higher extent even harsh measures were taken against those judges who denied obeying the top-notch order by the government. Not just in Pakistan but the UN Correspondents on the independence of judiciary and lawyers showed great concern over this open violation or rather attack on the rule of law.

Unfortunately courts are everywhere but justice is beyond access of common person, and whatever little penetrating procedure is available for the masses to gain easy and expeditious judicial services, is either too bold or easy to be sold and higher by the corrupt elites.

Diplomatically speaking, one of the main dilemmas of high jacked judiciary is co-related to the judge’s appointment, salaries, tenure and independent non-dichotomized permanency, the lesser the perks & privileges the higher the availability of judges for gaining personal momentum has been witnessed throughout Pakistan’s history.

Despite the fact that judiciary is either partial or no more independent in Pakistan, I personally believe that if it is easy to blame easily available corrupt judges to gain judicial means then one should not deny the circumstances under which judges had sacrificed their souls for the noble cause of providing justice to all irrespective of their origin cum conducive position. Id est the trauma judges and lawyers families faced in the form of their loved ones abduction, physical & mental suppression, kidnapping for ransom, extreme harassments and murder to solemnizing political cum economical gains of the plenipotentiaries can not be neglected as the justice providers are justice reformers and their security and prosperity therefore possess great means for justice seekers.

It is a matter of great concern that the dividers of judiciary are ignorant the fact that they may ask justice from the same lobby once the power penchant will be removed or rather coup d’etat by the approaching authority over the proceeding authority, as what goes around comes around is the main philosophy involved behind injustices. Hence for the long lasting, expeditious zero degree dichotomous timely as well as easily available justice, safety, security, seniority & supremacy of justice providers as well as justice seekers, judicial channels is desired for judicious justice not for few but for all.