Accountability of Pakistan’s judiciary – by Saeed Khurshid
Justice begins from me
The ‘National Judicial Conference 2010’ – which is in the last day of its session – began with the objective to come up with a plan to make the dispensation of justice possible for all.
The Law and Justice Commission has issued a lengthy eight-point agenda on ways to improve the implementation of the national judicial policy, alternate dispute resolution, legal education, the use of information technology at courts, expeditious disposal of cases, removal of obstacles and remedial measures, elimination of corruption in the judiciary, steps for effective supervision and accountability, simplification of exhaustive and cumbersome procedures and the responsibilities of judges, lawyers, police, the prosecution and litigants in the dispensation of justice.
A similar conference was held last year, which culminated in the formulation of a National Judicial Policy 2009 by the Law and Justice Commission, but the policy has, unfortunately, failed to bring any positive or visible change in the judicial system: according to the statement by the Supreme Court registrar, the policy of 2009 was not a success.
Being a practicing lawyer, one can say that a year down the road, the confidence of the litigants in the justice system is showing a decline towards the dismal.
The question now is if a failed modus would work this time around.
Blame and counter-blame games have become a routine, and the media is playing with all of these things with impunity – adding to the frustration and confusion of the masses.
The Supreme Court blames high courts and their subordinate judicial establishment for corruption, while they in turn all blame the clerical establishment and the clerks blame everybody else around them. The judiciary, at private sittings, blames bar associations for “minimal cooperation and a dominant role”. The bar and bench both blame police, who – maintaining the continuity of the circle – point a finger at the bar and bench.
The question remains how the distrust and disharmony among contributories can be improved. An answer to how they all would understand their duties for public-friendly functioning also remains elusive, because this does not even merit as a discussion-point today.
According to press clippings, Justice Jawad S Khawaja of the Supreme Court has said that the failure of criminal justice lies in the collusion of SHOs and area magistrates. However, according to police and the magistracy, the realty at the grassroots is otherwise. And we see disharmony and hostility among the two on seemingly genuine grounds cited by both sides. The judiciary blames a lack of cooperation and excesses, while police blame their compulsions necessitated by ulterior involvement and misbehaviour of courts. The end result for both sides is dissatisfaction and disharmony.
Chief Justice Iftikhar Muhammad Chaudhry, in the inaugural speech at the conference of 2010, reaffirmed his contentious view that only the judiciary can hold accountable everybody, including parliament. It is yet unclear to me who would watch the watchmen. The Supreme Judicial Council with its self-made rules of business or some independent commission or body to deal with the complaints against all constitutional posts, including those of judges?
The establishment of district complaint cells, headed by “men of high integrity and moral values”, may work more effectively and fairly if an independent complaint secretariat is established with its own intelligence agency and support staff appointed through the service commission. The complaint cell should hear complaints against all statutory bodies, including the judges and police, subject to rules and regulations. Complaints should be verified through the secretariat’s own independent secret agency and information should be collected from district heads. If a complaint holds weight, it should be forwarded to the authority related to the matter. In case of a frivolous compliant, the secretariat should proceed accordingly against the person responsible.
The 1973 Constitution provides for dignity and respect for all citizens as an inalienable fundamental right, and the courts are required to protect the fundamental rights of citizens. The insult of an individual at all levels must be punishable, even if the guilty party is a person holding a high office: that would eliminate the sense of deprivation and disparity currently being aggravated with every passing day.
I believe that justice begins with oneself. If I am wrong, I must give myself up to the law, which is for all – irrespective of the ruler or those ruled. Nobody should be a judge of his own cause. A big sign of interrogation still hovers around the watchmen.
A uniform opinion that we have weak institutions is in the air, and we, therefore, need either reconstruction or, at least, help from others. We must ensure peaceful coexistence through cordial working relationships, mutual respect, helping attitude and a lot more. The judiciary or any other institution is not self-sufficient. If interdependence is inevitable, isn’t it time to ensure that the rule of law prevails and we live and let others live?
The writer is ex-civil judge and a practicing lawyer at district courts Islamabad
Source: Daily Times
Aitzaz warns against discarding 18th amendment
KARACHI: Former President of Supreme Court Bar Association Chaudhary Aitzaz Ahsan has warned of confrontation among state institutions if judiciary struck down the 18th amendment.
Talking to the media persons after addressing a seminar in Karachi, he said that the parliament and all political parties of the country have unanimously passed the 18th amendment, and it will be a difficult decision for the judiciary to reject it. “If such a situation developed, there will be confrontation between the two institutions”, he warned.
Aitzaz Ahsan favoured the formation of new provinces saying it will strengthen the federation.
http://www.onlinenews.com.pk/details.php?id=161588
Aitzaz fears judiciary-parliament row over 18th Amendment
Sunday, April 18, 2010
By Jamal Khurshid
Karachi
Former president of the Supreme Court Bar Association and PPP leader Chaudhry Aitzaz Ahsan on Saturday expressed fear of another confrontation between the judiciary and parliament in case the 18th Amendment is struck down by the Supreme Court.
“The 18th Amendment to the Constitution has been made with consultation of all parties having representation in parliament and it would be difficult for the court to strike it down,” said Aitzaz, also a former parliamentarian, when asked to comment on the petition that challenged the appointment criteria of superior judiciary judges under the 18th Amendment. “It is my wish that this may not happen,” he commented.
Aitzaz Ahsan was invited by the Civil Society of Pakistan to deliver address on the ramifications of the NRO judgment, however, he said that he was not conveyed in this regard. Earlier, addressing a lecture, he urged the elite class to come forward and take part in the democratic process instead of merely criticizing the government in drawing rooms for its failure in dealing with education, law and order, economical and other crises.
He said that social and national mindset needed to be addressed amongst the people at individual and collective forums that could pave the way for establishing society on the basis of justice and equity.
http://www.thenews.com.pk/daily_detail.asp?id=234755
Ansar Abbasi reveals his true (pro-Taliban, anti-democracy) face by criticizing Aitzaz Ahsan:
Aitzaz speaks his mind, political not legal
Sunday, April 18, 2010
News Analysis
By Ansar Abbasi
ISLAMABAD: Barrister Aitzaz Ahsan has finally changed his side from the judiciary to the Zardari-led PPP by subtly suggesting that the judiciary should keep its hands off the constitutional petitions being filed in the apex court challenging some controversial parts of the 18th Constitutional Amendment.
The hero of the pre-March 16, 2007 judicial movement, surprised many when he told a seminar in Karachi on Saturday that if the judiciary strikes down any part of the 18th Amendment it would lead to a serious confrontation between the judiciary and parliament.
As Qazi Anwar put it, Barrister Aitzaz’s statement is nothing but a ploy to frighten the apex court and stop it from taking up for the judicial review of petitions challenging the 18th Amendment. However, what the PPP leader says can neither be justified legally and constitutionally nor is practiced in other countries.
Not only almost all the top and respected former judges of the superior judiciary have agreed that the new procedure of appointment of judges in the 18th Amendment is controversial and contrary to the basic constitutional feature of the independence of judiciary, they are also unanimous in their view that the Supreme Court has the constitutional right to review any constitutional amendment and can even strike it down if found in friction with the basic features of the Constitution.
Aitzaz Ahsan’s statement has come at a stage when the 18th Amendment has already been challenged by Akram Shaikh while the Supreme Court Bar Association, which Mr Ahsan himself led in 2008, has also announced to file a petition against the same amendment.
In Aitzaz’s view, it would be difficult for the judiciary to strike down any part of the 18th Constitutional Amendment but he warned if such a decision is handed down by the judiciary it would lead to a serious confrontation between the judiciary and parliament.
This statement of Aitzaz reflects one of his recent statements in which he has already declared that in case of any future confrontation between the judiciary and the PPP, he would side with his party.
Aitzaz, who has been one of the undisputed heroes of the judicial movement, has now become controversial more because of his silence than his words and despite his positive role to defuse tension between the judiciary and executive over the appointment of Supreme Court judges early this year.
But his Saturday’s statement is surprising for the reason that how a law practitioner of his stature could say that it would be difficult for the apex court to entertain the petitions filed before it challenging the 18th Amendment.
Interestingly only on Friday, the chief justice of Pakistan spoke at length about the judiciary’s right to review legislation and constitutional amendments as approved by parliament. He said that the Constitution invests the superior judiciary with the power of judicial review, which Aitzaz is trying to deny today.
The 18th Amendment contains a new system of judges’ appointment as was proposed in the Charter of Democracy, whose authors include Aitzaz Ahsan. Most of the members of the legal fraternity and former respected judges agree that the new appointment procedure negates the judiciary’s primacy in the judges appointment and is likely to pave the way for politicised appointments, which would badly hit the independence of the judiciary.
The respected legal minds like Aitzaz Ahsan instead of issuing warnings to the judiciary, should educate the people and the parliamentarians about the right of the judicial review as it is practised all over the world. Majority of parliamentarians have the misconception that parliament is supreme and that the judiciary has no right to strike down any constitutional amendment approved by parliament even if such an amendment is in friction with the fundamentals of the Constitution, changes its basic features, negates the rights of the people or compromises the independence of the judiciary.
Aitzaz would do a great service to the nation if he educates the parliamentarians about the limits of three pillars of their state, their respective roles, the system of checks and balances and the fact that it is the Constitution that is supreme, parliament is sovereign to make laws or amend the Constitution whereas the judiciary is independent and has the right to review parliament’s legislative work.
http://www.thenews.com.pk/top_story_detail.asp?Id=28370