Independence of Judiciary
o Introduction and short comparative review of world judicial setups
o An analysis of independence of Judiciary in Pakistan
o Its impact on state and society.
o Current bright scenario of judicial independence and constitutionalism.
o Factors enslaving judiciary
o Factors paramount essential for independence of judiciary
Man is social animal who wants and needs societal life which is interdependent. This view is expounded by both Socrates and Imam Al-Ghazali in their respective theories regarding nature of man. He interacts with his society members that give rise to mutual disputes, different crimes and general violation of rights besides good deeds. In order to purge the society of these criminal acts and maintain its just, healthy and balanced fabric an institution of independent judiciary ought to be there. By having an independent judiciary it will serve as a custodian of human rights, provide means for rule of law not man, enable man to feel protected and served. Countries of the world, therefore, Endeavour to have in practice an independent institution of judiciary. After analyzing different judicial systems of the globe it can be revealed that there are both cases of success and failure. United States of America and United Kingdom, for instance, are the well known countries that have in comparison, far succeeded to maintain independence of judiciary. People can get justice whenever their rights are violated. On the contrary, the Muslim world has failed to come to the expectation and needs of the people in imparting justice to the citizens. In fact mostly the judicial structure is influenced. Like other countries Pakistan too did little to have an independent judiciary in order to give independent and impartial justice to the people.
An institution of judiciary plays a great role in a government. It protects the civic rights of citizens of a state; it protects and interprets the constitution; it investigates corruption cases; it ventilates the grievances of; last but not the least it provides dispassionate justice to all and sundry. All these functions the pillar of judiciary plays if it is independent. Given this, are these functions emanated from judiciary in Pakistan are an important question.
Since coming into being restrained judiciary used to prevail over the country and an independent one. As a result, it remained an incomplete task that brought ill consequences for the state and society. The nation has witnessed this regrettable situation right from top to bottom during the course of history. Numerous instances can be cited to substantiate this fact. Supreme Court of Pakistan could not declare null and void the first illegal dissolution of the National Assembly by the then Governor General. Onwards Judiciary lacked independence, and perhaps the will, to bring to justice the makers of coup de Tates and perpetrators of constitution. Takeovers were declared legal under the garb of doctrine of Necessity. It in certain cases gave legal cover to the prime acts of take over. As when General (R) Pervaiz Musharraf by dint of his unlimited powers took over on October 1999, later on SC bench not only announced its verdict in his favour but also mandated him to alter the constitution at his will. It was the irony of time that a person became both chief executive and chief legislature. In fact, Pakistans 62 years short constitutional history is full of more or less like these acts of judicial containment and uncontitutionalism.
When at the top level judiciary is non-independent to such an extent how can it is independent at subordinate level. At the bottom people have generally suffered injustice. Seeking justice from court of law has become an expensive affair. When the people to whom injustice is done are in quest of seeking justice face hard ship in the process. Given the general trends in the entire process of trail, courts of justice at different level appear to have badly influenced. Politicians, officers, businessmen, influential people such as land lords, khans, waderas, nawabs and sardars prove a stumbling block in way to impartial and due justice. In the process naturally the aggrieved party suffers injustice. In light of such bleak scenario at both upper and lower levels ultimate decisions are affected, indicating lack of independence of judiciary in Pakistan.
These sorry affairs have left a deplorable impact both at state and society levels. At state level rule of law, constitutionalism and democracy have been largely received setbacks. Dictatorship raised its ugly head, disparity and a general sense of lack of legal protection. Pessimism has prevailed culminating in suppression of independent voices, opinions and thoughts that are the vertebral column of basic rights, rule of law and democracy. Freedom of press and media is influenced and countrys picture is drawn in bad color abroad. Moreover, society is also influenced: common man is suffered which has generated in him disparity, hopelessness n the society and crime ratio increased. Because, when people are menaced by the judicial system in a country they fuel enmity and take the laws of the land in their own hands. This results in general aggravation of the social order which is then ripe to unhealthy environment. Because, law and order situation of the country gets disturbed and socio-economic progress starts declining.
Now after having such an impact asking a logical question is: what are those factors which stop judiciary from playing such independent role? They are, firstly, absence of democracy in a country. Pakistan is unfortunately ruled by the army most of the time. Four military generals came and put judiciary to task. Its independent character was damaged. Secondly, lack of a sacred constitution which was adopted and altered by the generals to secure their interests. Thirdly, lack of merit-based, independent and upright judges. Fourthly, lack of separation of powers as well as checks and balances. Fifthly, Western influence for serving their vested interests in Pakistan. The concept of rights awareness and prevalence of local traditions and customs.
Though during past judiciary played a subservient role and succeeded little to render independent justice to the people which in return badly influenced the things due to certain factors it is very delightful to see that presently judiciary has gained considerable independence. For the present independent character of judiciary October 2, 2007 proved a defining day. Before this when the presidency put charges against the Chief Justice the case was sent to Supreme Judicial Council for decision under Article 209. The decision favored the CJ. As the time rolled by, General (R) Musharraf sacked 61 judges by promulgating emergency who replaced them by PCO judges. However, over the times legal fraternity sacrificed a lot by taking pains of in launching successful rallies and protests amid resistance. It gathered more force when political parties and civil society also joined the cause for securing independent character for judiciary. The moment brought fruit when from the floor of assembly Prime Minister announced the restoration of the judges. Though later on some judges showed reluctance to be reinstated through the criteria set out by the incumbent government but all the judges ultimately got restored.
Now people have placed high hope on the judiciary to deliver justice to the who have suffered injustice for long. The cases pending for long needs to be decided in an impartial manner with speed to enable people receve justice. Because delaying justice is injustice also as people pass through the travails of hardship in the process of investigation, trail and decision. The newly announced judicial policy seems a positive step in the right direction. It needs to shoulder its responsibilities besides an environment to have its verdicts announced in an impartial manner. For creating the environment the following essentials needs to exist in the governing. Ain this regard it is mentionablr that the judiciary itself should take steps to preserve such environment sustain ably.
The first and far most essential ought to be democracy in the country. In democracy people voice does not go unheard. In a democracy the institution of judiciary is respected not underestimated. People can knock the door of justice with out any hindrance. In Western democracies such a setup exists. In this regard the precedents of Western judicial setup need to follow. For example in United Kingdom seeing justice is easy where courts of law discriminate no one on the basis of power, rank and status. It is said that in UK a clerk and Prime Minister are delivered justice on the same lines of procedure and consideration. Similarly, In the US judiciary is a very powerful institution. It can declare null and void any ordinance and congressional bill if wise judges find them to be in contrivance against law of the land through its power of judicial review. A citizen can access the court and seek justice. In America the Bill of Rights is held un-violated. People enjoy protection and liberty of life, property and honor. Similarly, there may be offered other such examples which substantiate that judiciary plays a very independent, unbiased and impartial role in the countries where democracy rules. Pakistan needs to follow suit of such independent judiciaries of the world.
Besides democracy another essential should be a secured constitution. As a constitution is a written document dealing with the powers and jurisdiction of branches of the government. In it is registered how legislature, executive and judiciary will work in there specific areas. In such a way no confrontation environment is there as every institution tries to act according to laid down principles in the constitution. So there should be a sacred constitution. In countries where the citizens enjoy the fruit of independent judiciary is due to the fact that there law rules not man.
In addition to democracy, safeguarded constitution, there should also be separation of powers. The framers of the US constitution were prudent enough to introduce the principle of separation of powers, a well known theory expounded by French philosopher, Montesquieu. This principle along with checks and balances work satisfactorily in America. If such a system is workable in Pakistan it should be introduced- certain modifications may be incorporated in the principle before it is employed as political environment of the two countries differ. This separation of powers and checks and balance constitutional system should aim at avoiding confrontation among executive, legislature and judiciary, define constitutional area of jurisdiction in a balanced manner and make the institutions effective and responsible. This will serve the national cause of judicial independence. In short every possible result-bound step be taken to enable an environment wherein the shackles enslaving judiciary are broken and transform it into a people serving independent institution.
This world ought to free from injustices meted out to people by providing judicial means to give justice by all the countries. This will put down injustice, prosper nations and build their trust. Because many peoples suffer injustices particularly in poor and developing world. The majority of people in Pakistan like other countries has remained the sufferers of the dieses of injustice due to the lack of independent institution of judiciary. During the course of history judiciary received serious blows which made it unresponsive to protect constitution, bring the culprits to justice, take suo moto actions to immediately address anomalies, interpret the constitution , reign in the access of powers by other institutions, mitigate the people grievances and protect the basic rights of people. In the availability of these judicial responsibilities and functions lies a considerable success of Pakistan in different aspects. This is possible only when independence of judiciary is ensured constantly. For this heart applying efforts and unpopular decisions need to be taken. However, given the present picture of vital developments for judicial independence, it can with reason be hoped that judiciary is fast growing towards its meaningful independence but all possible means be harnessed to ensure judiciary stays its present course.
Can Democracy FLOURISH IN Pakistan Politics Essay
Democracy is a form of government in which persons elect their representatives themselves and the representatives of the persons form federal government and opposition. Counseling may be the base of a democratic point out. The state ensures equality and collateral for all citizens regardless of their caste, color, terminology and race. The federal government performs all tasks, for the welfare of all people and is normally accountable to persons in the efficiency of its obligations. The opinion of each citizen is respected and given credited importance. Every citizen has a to vote to his most loved prospect, to contest election, to become listed on any get together and form his unique party. That is why it is defined as “Rule of the people, rule by the people, and guideline for the people”.
Democracy was the form of government which was regarded as implemented when Pakistan happened. Pakistan happened consequently of a strong democratic movement beneath the leadership of Quaid-e-Azam. The persons of Pakistan, who confronted all the problems and difficult circumstances, showed their determination to defend the flexibility. They boldly faced the situation and gradually solved the issues. The Pakistani motion was based on Muslims` absolute privileges of independence and the real execution of democracy was one of many goals of establishment of Pakistan. It had been thought to adopt the democratic composition and enforce democratic values. Quaid-e-Azam described the aim of establishment of Pakistan in Sibi as “Why don’t we promote “Democracy” according to the Islamic principles.” Unfortunately, this can be a disheartening spectacle that within a period of 65 years, Pakistan hasn’t proved itself to be a democratic talk about in its true good sense. Instead of becoming a style of democracy as visualized by Quaid-e-Azam, Pakistan has become what may be best described as “lame democracy” (Shaikh, 1) Pakistan was governed by civil and military bureaucrats through the early 20 years of it. The first democratic elections were kept in December, 1970. In constitution of 1973, this is for the very first time in the history of Pakistan, democratic parliamentary authorities was formed. This first of all phase of democratic government continuing till 1979. Second and third democratic phases were between 1988 to 1999 and 2007 to the present date respectively. In this way, Pakistan remained as a democratic express for only 24 years. Democratic traditions aren’t yet produced in Pakistan and during these 24 years, democracy proved itself only a failure. Although implementation of democracy was one of many objectives of Pakistan on the other hand, democracy cannot flourish in Pakistan because its political leaders, bureaucrats and feudal landlords won’t let democracy to become flourished. Moreover, basic democratic traditions of equality and freedom aren’t followed in Pakistan
The main responsibility for the failing of democracy lies with politicians. Firstly, they are not sincere with their jobs and so are unfaithful to the point out. Secondly, Pakistani political leaders are consequently incompetent that their plans keep failing. People vote a set of politicians with a desire that their elected representatives will act as their faithful leaders and can devote themselves wholeheartedly to the services of the people. But to persons`s dismay, Pakistani politicians do not become honest leaders but as corrupt and disloyal politicians whom ambitions lie in filling their private pockets with public cash. Political leaders are in charge of playing games with people for their own benefits. They have destroyed the purpose of creating an independent homeland of Pakistan giving rise to favoritism and corruption. In Pakistani democratic system, the elected leaders do not on a regular basis visit their constituencies as they are least bothered of public issues. In addition, just about all politicians contest elections on the basis of fake degrees. According to an official report, 106 politicians have already been counted for contesting elections based on fake degrees. (qtd. in culprits, 1) This plainly depicts dishonesty of political leaders. Confidence can’t be restored in the masses. Furthermore, political leaders happen to be incompetent and are unable to discover the solutions to the nations` complications. Political process retains collapsing in Pakistan and guidelines of political parties keep changing in fact it is very difficult for the politicians to attain unanimous stance for a specific political policy. The insurance plan of nationalization and posting of incompetent operations halted democracy further. Since the creation of Pakistan, the same political get-togethers have stayed in power. For example, Pakistan People`s Party arrived to power many times. Persons keep supporting the same party beneath the slogan of “Roti, Kapra or Makaan” due to their affection for the founder of the get together without even realizing the results of their support. Under these circumstances, democracy can never end up being flourished in its true sense.
Bureaucracy also imposes a serious threat to democracy. Pretty much the constitution of Pakistan is situated upon the democratic principles. Even so, the proposals in the constitution could not be implemented as a result of the attitude of some individuals, who are not prepared to leave the laws introduced by the British authorities. They are staunch bureaucrats. Bureaucracy has always remained powerful since the creation of Pakistan. It comprises the Central Better Providers and the Provincial Civil Companies. (Piracha, 1) and the primary cause which stimulated the way of life of bureaucracy in Pakistan is definitely institutional imbalance. Bureaucracy is normally neither in favor of giving capacity to anyone nor is preparing to become in charge to anyone. This attitude is the main obstacle in the manner to democracy. Almost all of the bureaucrats become partial and exploit resources of the country for a most desired political party. Bureaucrats of Pakistan happen to be notorious for their corruption, inefficiency, and incompetency and therefore in charge of destroying democracy in the country.
Another main cause for failing of democracy in Pakistan is definitely feudal system. Pakistan offers inherited feudal program from “British India” which feudal system will never permit democracy flourish in Pakistan. Feudal terrain lords have a major role in forming policies and they would never prefer to formulate those guidelines which will be against their curiosity or are beneficial for the persons. The feudal lords acted as traitors and backed British leaders for creating a moth-eaten Pakistan and now, currently day, Pakistan is nothing but a feudal state. Most of the political leaders of Pakistan happen to be feudal lords who’ve founded their identities as political leaders. For example, Jamal Leghari has result from a family of feudal land lords. He’s the son of ex – president of Pakistan Farooq Leghari. The feudal lords retain people at arm`s size and treat them as their slaves. The rigid mother nature of this class system provides prohibited Pakistan from educational and financial development and offers laden Pakistan with a category framework that hinders democracy. The farmers` community is beneath the control of their feudal masters. Such underprivileged and economically demoted peasants’ can haven’t any other option but to vote for their masters. The famers live beyond the poverty series and cannot possibly express their will openly. Below, the spirit of democracy is violated. Peasants are pressured to aid their lords because of their fear or may be due to insufficient knowledge. In this way, the elections are useless since the peasants is only going to vote because of their feudal lords under their pressure and democracy will get worse than “oligarchy”. Supremacy of feudal class is destroying democracy and also national integration which itself essential for democracy. Democracy provides been proved beneficial for the feudal territory lords since it provides a go over to them and allows them to rule as long as they want. As far as common people are worried, they look and feel themselves in no benefits in such a democracy. In such a circumstances of distorted democracy, even a thousand elections will not change Pakistan’s future.
Democracy is founded on fundamental traditions of equality and flexibility of speech among residents. As far as Pakistani democratic system is concerned, it has didn’t accomplish either equality or liberty among people and so democracy in Pakistan is unsuccessful. This is a clear proof inequality when people need to pay bribes to get themselves a job. There is no merit plan, while making appointments and discrimination based on caste, social position and also gender has removed the ideas of democracy. Rich can certainly exploit the poor. For instance, the wealthy people are always encouraged rather than educated people. Hardly any educated people become a member of politics and assemblies. In this way, the uneducated people sitting in
parliaments cannot build democratic society on right lines. In a democratic condition, the opinion of each citizen annotated bibliography topics is usually respected and given due respect. The citizens have total liberty to criticize the performing of the federal government. Although freedom of speech exists to some extent in Pakistan, but because of no constitutional safeguard, it is not fully implemented. A common Pakistani citizen lacks constitutional security and thus when any civil servant attempts for the nice governance; he has to face many obstacles. Whenever an individual tries to raise his voice against government, he’s pushed back rather than going forward. For example, various journalists of Pakistan who make an effort to raise their tone of voice against politicians are threatened by them. For example, Najam Sethi, a senior journalist of Pakistan, disclosed that he had received significant threats from both non-state and express actors. (Khan, 1) Likewise, many journalists have been murdered in Pakistan namely Abdul Haq Baluch, Abdul Qadir Hajiazi, Abdul Razzaq Gul, Tariq Kamal, Aurengzeb Tunio, Murtaaza Razvi, Syed Saleem Shahzad, and Mukarram Khan Aatif. (Admin, 1) Moreover, police experienced beaten journalists in Pakistan on Press Freedom day even though they were covering the arrival of Asif Ali Zardari. (Admin, 1) Under these circumstances, no person will dare to stand against government. When true meanings of democracy have got not really been fulfilled by Pakistani authorities, it cannot declare it a democratic express.
Illiteracy is also among the reasons for not letting democracy flourish in Pakistan. In Pakistan, the training sector remained neglected for a long period. In the census of 1951 the literacy charge of Pakistan was 16% that rose to 26.2% in 1981. Regarding to census of 1998, literacy rate of Pakistan is 43.92% and literacy rate in ’09 2009 can be calculated to be 58% which is quite low compared to the developed countries. (Admin, 1) Such underprivileged and uneducated persons cannot make right choices. So maximum part of our population is still suffering in illiteracy and backwardness and struggles to contribute anything towards the expansion of Pakistan. High rate of literacy is very important to democracy. Illiteracy also contributes to poverty. An illiterate and economically impoverished community cannot comprehend and comply with the true spirit of democracy.
In Pakistan, most of the political leaders and functions support democracy. It really is argued by its advocates that in a democratic express, rulers can easily be modified without violence. This belief is definitely false as it is evident that whenever any democratic government fails, it is overtaken by military federal government and the solution is never peaceful. Numerous types of military rulers in the united states incorporate Ayub Khan, Zia-ul-Haq and Pervez Musharraf. Martial law isn’t itself enforced, but these are the bad techniques and failing democracy of the government which are responsible for giving climb to Martial Law. Moreover, the federal government can come back again after re-elections, for example Pakistan People Party arrived to power often. The arguments and only democracy in Pakistan happen to be fine theoretically but they are inappropriate in today’s political scenario. It is believed that in Pakistan a democracy could under no circumstances survive for long due to the incompetent people in the thus called democratic system.
People support democracy in Pakistan because they assume that it is the only form of government which gives persons an possibility to make choices and what so ever before their choices are, customers elected are majority people`s chosen representatives. Basic elections are kept in true democracy every once in awhile. The people can easily change their rulers by electing brand-new ones. In Pakistan, the situation is worse because participants elected are not people`s representatives. The primary reason to it is that only very few persons in Pakistan vote and regrettably, there is very little evidence that may prove that elections in Pakistan happen to be fair and free. Firstly, people of Pakistan aren’t prosperous and well-off and therefore their votes can simply be purchased. It has been noticed that votes are ordered as cheaply as 10 rupees. Secondly, there is much rigging in the election process. Kidnapping voters or individuals on elections is certainly a common spectacle. In addition, Pakistani political parties do not announce their “Party-manifesto” during the election campaign. For starters, the parties do not believe in almost any manifesto and secondly, if indeed they do believe in having a manifesto, it really is so unclearly stated that it pretty much means little or nothing to the readers. In addition to this, voter turnout and program of election have further destroyed democracy. In the National elections of 2008, the full total voter turnout as documented by the Election Commission was 41.11 percent of the full total registered voters. In Punjab and Sindh, 48.18 percent and 44.16 percent of the authorized voters voted at the elections. (petitioner, 71) Such kind of election which is suffering such a low turnout is destroying the real spirit of a democratic talk about. Furthermore, the system of election “First At night Post” which is followed in Pakistan isn’t democratic. According to the system, the applicant securing the highest number of votes may be the winner. The winning candidate, however, does not necessarily receive an absolute most all votes cast. As a result, according to the system, the customers of the parliament who declare to be representatives of people may not command the majority of the votes authorized and polled. Therefore, they might not genuinely symbolize their electorate. In such a situation, true democratic spirit can be violated and associates elected aren’t actually the majority chosen representatives.
The accountability process is essential in a democratic point out which results in tidy and fair performing of the executive. Nevertheless, there is no system of accountability in Pakistan. Every incoming federal government makes big claims about accountability, but no effective step has been taken in this respect. If any authorities establishes the framework which is mostly opposition oriented or highly complex, due to that your corrupt bureaucrats generally escape from punishment. The federal government affairs aren’t dealt transparently and the gap between persons and the government isn’t bridged. There is much evidence which can prove that Pakistan does not have any system of accountability. For example, Khursheed Mehmood Ksuri and Sheikh Rasheed Ahmad have been known to be allegedly involved in pursuits like corruption but no step have already been taken against them and they both are making the most of the high official posts. Another example has been place by “Mullahs” who’ve confirmed total support to Pervez Musharraf plus they have also been mixed up in genocide and master minding human rights abuses during the Bangladesh war of 1971. (Sadruddin, 1) Under these situations where there is absolutely no accountability process, democracy cannot be flourished.
Democracy features been proved the most severe type of government for Pakistan. The prevailing democracy reign of Pakistan People Party possesses been proved the worst ever in the annals of Pakistan. It is because it has given rise to unemployment, inflation, poverty and monetary crisis. Democracy is not suitable for a country like Pakistan where almost all of the population is underprivileged. It has additionally been badly failed in lots of other countries like Turkey, Thailand, Israel and Africa. Hence it really is proved that democracy isn’t the successful form of government. If it is successful in United States and India, it really is due to their political and social atmospheres. The ambiance over Pakistan will not support democracy at all. Pakistani authorities should take the exemplory case of China which is not a democratic state but still the world`s second greatest economy. Similarly, Singapore was also not a democratic state when it attained independence and Mr. Lee was its 1st president and he set Singapore on the map of the critical analysis essay world. As one writer once put it, “Singapore has realized the American dream, however, not in the American way”. This has been completed through what they contact a “Benevolent Dictator”. (Trip, 1)
Pakistan is certainly a welfare state which includes been struggling for democracy since its creation. Democracy has got been badly failed in Pakistan due to incompetent leadership and declining political guidelines. In addition, bureaucracy and feudal system has abolished democracy forever. In Pakistan, democracy is definitely nothing but a misapprehension which cause persons to vote for somebody they know and they will only know the person who can encourage himself. That means it does not depend what sort of government Pakistan adopts, what counts is the good administration, accountability procedure and merit policy. Instead of continuing program of the state as a fragile democracy, Pakistan should either turn into a theocracy or a communist.