I think good old Greece would be the appropriate beginning, beginning for a journey of mankind, a journey of social development, a journey in chase of an organized governance structure. With an apology to those fundamentalists who tie every knot of human development to Medina, I must admit that Greece has served as of a beacon of light in an era when mankind was passing through the darkest tunnels of time. This beacon not only guided us but lead us into an era of practicable Social Science. What we call codes of a society is all courtesy of Mighty Greece. Greece for sure deserves a salute from mankind.
Thanks to my beloved Pakistan that for the first time in my life I was getting suspicious about Independence of Judiciary. Questions about Biased Decisions, Unequal Application of Law, Supra Constitutional Decision, Political Statements, Influence of Personal Views over Judgments, Behaviors, Attitudes and Domain of Authorities started to raise in my mind. A mind that was fond of an independent judiciary, that had a heroic recognition of the Chief Justice and a mind full of ambitions and dreams. The same mind was now full of queries and suspicions about what exactly is an independent judiciary. I tried comforting myself but the decision of Lahore High Court’s Principal Seat consisting of Chief Justice Khawaja Sharif and Justice Ijaz on the petition regarding suspension of trains acted as a final blow to my belief in judicial process. Being a student of Engineering I am well aware of financial management of a project. I am aware of the fact that the only solution of a project in continuous loss is abandoning of that project and I am sure Mr. Chief Justice would also be well aware of the fact. Furthermore he would also be aware of executive domains of a department. Then how come such a decision appeared on the law journal.
It was a journey through the time tunnel, Charles-Louis de Secondat was my guide, his Tripartite System was our express and we were roughing our selves out in chase of an Independent Judiciary. I thought why to make palaces in the skies, why not meet the grand architect of the concept of independence of judiciary, the founder of the Tripartite System, the separator of Executive, Legislative and Judiciary. The ultimate political philosopher Charles-Louis de Secondat. I kept asking questions and he kept unfolding the history. I would like to share this off record interview with you people.
1)-I asked about the emergence of this bright idea. Exactly where did he get it from? Ancient Greece was where he took it. Before the Kings of Sparta he made me stand and I witnessed the myth of legal fiction and the beginning of advocacy.I saw how the Sparta had to suspend his judgment on the basis of claim of extraction of evidence and how the mighty Sparta was helpless when in the court.
2)-I asked whether judicial process is the ultimate fair process in a nation’s life and weather the judiciary is supposed to look after each and every aspect. Roman Republic was where we appeared and he made me read the un codified Roman Constitution. He said right from the point of beginning of Independent Judiciary begins the declaration of it’s domains. No way can it intervene in the other pillars of governance.
3)- I asked whether judiciary must lie beyond accountability, reason being preservation of its independence. America was place this time and Justice C.P. McRae was before my eyes. A judge thrown out of business and into the gallows for his love for money.
4)-I asked whether judicial independence lies beyond care to “National Interest”. Judge Richard Markus was the test case. A judge dragged to roads for issuing a remark “What Constitution?”
5)-I asked despite your arguments there have been some “Marvelous Judges” in the history who set aside the boundaries, domains and the Constitution and devoted them self to public service. Are they not a bright example. Charles was crossed at this remark. He made to roam around the globe, United States of America, Costa Rica, Hong Kong, Hungary, Taiwan and many others. Made me look at Justice Kermit Roosevelt III, Justice Anthony Kennedy, Theodore Olson, Solicitor General and many more. He made me read the judgments like Brown v. Board of Education, Roe v. Wade and the Black’s Law Dictionary. Held my collar and asked “What was the fate of these Judges?”, “What was the fate of these decision?”, “What does the history call them?”, “What state of anarchy did they create at their time?”. “What was the service they ever provided?” “What was the reason for the demise of nations?”, “Did a simple judiciary manage to function following an active judiciary?”, “What happened of remarks, were they louder than decisions?”. My boy a judicial activism is harmful to the legislative, executive, federation, nation and foremost to the independence of judiciary itself? Having a look at the sweat on my forehead the old man realized that he has started to scare me out.
6)- I asked that despite agreeing with your opinion I am compelled to ask that is it supported by Islamic History because many in my country do not accept any thing not related to Islam. Charles raised his eyes and asked me you are a Muslim not me me are you not aware of the Suspensions of Guilty by Umer e Farooq(R.A) who was the Executive Authority was it challenged by the judiciary, are you not aware of the suspension of authoritative personals by Ali ul Murtaza(R.A) in the beginning of his reign was he interrupted by the judiciary in his domains, Are you not aware of the pardon granted by a Sahabi e Rasool (S.A.W) in the course of battle to an alcoholic, was his executive authority challenged?
I was getting annoyed by the old man, he had such a strong grip over the history that he did not let me have an edge from a single corner. I finally blew up. I said “Sir you must be correct about your theories regarding domains, limits of power centers and judicial activism, but what would you say about the decision of my Chief Justice regarding Suspensions of Trains. He has ordered to put them back in business. Not what to say?”
Charles-Louis de Secondat smiled this time, it was the first ever since we met, grin of old man was very meaning full he said “I expect Mr. Chief Justice to be in knowledge of the history of such decisions, I expect Mr. Chief Justice to be aware of the results of such decisions, I expect Mr. Chief Justice to be aware of the repercussions the Federation has to bear, I expect Mr. Chief Justice to be in knowledge of the reason for the demise of your Railway Department, I expect Mr. Chief Justice to call all the decorated executives of the past who dug Railway six feet under, I expect Mr. Chief Justice to be brave enough to declare the National Logistic Cell Ordinance void and ab initio because it was the blow that made you Railway breath its last, I expect Mr. Chief Justice to be aware of the financial losses the department is facing, I expect Mr. Chief Justice to be aware of the circular debt of the state owned institutions, I expect Mr. Chief Justice to be aware of the fact that re initiating a drowned project would lead to further demise. As your Chief Justice Khawaja Muhammad Sharif is hell of a patriot and cannot think of drowning the Federation therefore” (The grin on old man’s face grew deeper).
“I expect Mr. Chief Justice to bear the losses initiated by these trains from his personal pocket or pocket of his 40 year old friends or the judicial budget.”