Independence of the Judiciary

By Justice Dorab Patel

Here is an excerpt from the speech made by Mr. Justice Dorab Patel that addressed the Cornelius Society in Lahore on Dec. 23, 1995. He is the first judge of the Supreme Court to have revolted against the martial law dictatorship of General Zia ul Haq and to have resigned from the Supreme Court of Pakistan when the Supreme Court's judges were taking oaths on the army-tailored Provisional Constitution Order (PCO). At the time, Mr. Justice Fakhr Ud Din G. Ibrahim, who was also an ad hoc Supreme Court judge, followed Mr. Justice Dorab Patel's path and resigned.

I belong to the generation of common law Judges. My generation has passed out, but we had inherited from the long line of judges, British and Indian, who preceded us traditions of service, of learning and scholarship, of integrity, financial and intellectual, and of social aloofness. These traditions had been built through sacrifices. As Sind was a part of Bombay Presidency for more than 75 years, I will give an example of the Supreme Court of Bobmay. In some civil litigation, the bailiff of the Supreme Court went to the Governor’s House to serve a summons of the Court on a member of the Governor’s staff. He was ordered to get out. After a few days, he again went to serve the summons. This time he was threatened. The Chief Justice sent for the Commissioner of Police and told him to send a senior police officer to accompany the bailiff to serve the summons. The bailiff went with a senior police officer to the Governor’s House to serve the summons, but they were both threatened and had to return. The Chief Justice locked the Supreme Court, returned to England and lodged a complaint against the Governor with the Board of Directors of the East India Company. As the Directors did not take action against the Governor, the Chief Justice resigned. But his resignation was not in vain. Never again did the Bombay Government treat the Court with contempt. But the most valuable legacy of this clash with the Governor was that the Judges of Bombay developed a tradition of rigid aloofness of the judiciary from the executive, and in my opinion a judiciary cannot remain independent without this tradition. When I became a Judge of the West Pakistan High Court, the Chief Justice of West Pakistan, Justice Wahid-ud-din Ahmed, had told me in this city that I had to change my life and habits because I had become a Judge. He told me that it was my duty to lead a secluded life and to avoid meeting Prime Ministers and Chief Ministers and politicians. I had tried to follow his advice.

I hope I did, because we were the trustees of the traditions we had inherited from the Judges before us.

However the winds of change caused by the break-up of the country in 1971 has led to a prejudice against what was good and of value in western ideas, but strangely enough not against what is bad in western ideas, like consumerism. I also think the practice of High Court Judges working as Law Secretaries had helped to undermine the tradition of the aloofness of the judiciary from the executive, and the last Martial Law has almost destroyed this tradition. On the morning of the 5th of July, 1977 General Zia had, to his great relief, obtained the consent of the Chief Justices of High Courts to act as Governors of the Provinces. And as these Chief Justices acted as Governors for a long time, it led to social intercourse between the higher judiciary and the executive to an extent which would have shocked the Judges of an earlier generation. Now because of the restoration of Fundamental rights, Judges have to decide cases of a political nature frequently, therefore, the Bombay tradition of the rigid aloofness of the judiciary from the executive is essential for the independence of the judiciary. Therefore the practice of appointing Chief Justices of High Courts as Governors should be discontinued, the more so as it is inconsistent with the mandate in the Constitution for the separation of the judiciary from the executive.

Finally, I would b failing in my duty if I do not refer to threats against Judges and lawyers by extremists. I was disturbed 3 or 4 years ago by reliable reports that Muslim advocates were being warned by extremists not to take up the case of Ahmadis in Faisalabad Courts. We did not protest against these attempts to interfere with the administration of justice, because we though this was a local and passing problem. We were wrong. Intolerance spreads if it is not challenged, and when the Supreme Court admitted a review against the majority judgment upholding the validity of the Ahmadi Ordinance, there was a demonstration outside the Supreme Court to intimidate the Judges. Nor was this the only demonstration of its kind. When the bell tolls for Judges, it also tolls for advocates, but no Bar association protested about this demonstration. The intimidation of lawyers increased and Lahore High Court advocates received assassination threats, which were reported in most English language newspapers. Bar Associations, political leaders and the majority of intellectuals remained silent, while the police took no action. So as night follows day, the extremists were emboldened to make a murderous attempt on the life of Mrs. Asma Jehangir, Hina Jilani and members of their family.

It is meaningless to talk of the independence of the judiciary if Judges and lawyers are threatened for the performance of their duties. These threats are the consequence of the wave of religious intolerance which is sweeping through many parts of the world and especially the countries of South Asia, and until the tide turns, this intolerance will continue to affect the independence of the judiciary. The struggle for the independence of the judiciary has therefore become a part of the struggle for re-building tolerant societies in South Asia, societies which respect human rights and especially the individual’s right of dissent. In the long run, an independent judiciary can survive only in a free society. Therefore, we have a long and difficult struggle before us. I hope we will have the courage and the perseverance to carry on this struggle.

Justice Dorab Patel