Judicial Immunity of Superior Courts Judges in Constitutional Framework: A Case Study of Pakistan

Abstract

Revision of judicial immunity available to superior courts judges in Pakistan is extremely necessary as frequent cases of Superior judiciary have surfaced up, where deviation from the settled principles of law has been made. Justice according to law can only be ensured by guaranteeing limited judicial immunity so that judges of the superior courts remain on guard. Judicial immunities have been extended to superior judiciary within Pakistan on the pretext of independence of judiciary. Doctrine of independence of judiciary is an offshoot of separation of powers theory which entails a system of checks and balances however checks and balances have been completely ignored in the constitutional dispensation of Pakistan. The privileges available to Superior Judiciary in Constitution of Pakistan under the garb of independence of judiciary ensure that judges remain above law even in case they trespass outside the mandate of Constitution & law. The laws in pre-partition India were promulgated to serve the interests of dominion of England. Post partition, India and Pakistan were required to do away with colonial traditions of slavery and enact new laws that benefited people of both countries and enlarged their freedom. However, both the nations continued with the vestiges of the past which has made people of India and Pakistan virtually still a dependent of various institutions. Fate of people’s life and rights rests with the superior judiciary. It is therefore, the need of the time to revise judicial immunity constitutionally in Pakistan so that accountability can also be ensured of the superior judiciary. The writs by superior courts are issued against 'Person' which includes any authority or person other than the High Courts and the Supreme Court of Pakistan and a tribunal established pursuant to law relating to the armed forces of Pakistan. This implies that no writ can be issued to superior courts of Pakistan. In a recent development, a three member bench of the Supreme Court of Pakistan has unanimously held all the previous law on the subject to be per incuriam, thereby declaring that administrative orders are not immune and infact, it is the judicial orders which were protected by virtue of Article 199(5).1 Article 199(3) & (5) should be referred to parliament for the repeal of said Articles so that army and judiciary do not enjoy a higher status than other organs of state. It is imperative in the light of recent developments in the case law relating to judicial immunity. It is proposed that other provision of Constitution be also reformed which elevate army and judiciary to a higher pedestal particularly the provisions relating to freedom of speech. It is suggested that the repeal of constitutional Articles should be done through parliament alone as mandated in the Constitution so that constitutional mandate is not eroded. Judiciary should not undertake such an exercise of making redundant provisions of the Constitution as it is beyond their mandate and authority. It is proposed that following the lead in India where administrative orders are not immune constitutionally, Article 199(5) of the constitution of Pakistan may be deleted as its removal will serve the ends of justice and bring more clarity to the law. The problems of the world in the form of terrorism are increasing day by day and all this has roots in denying justice to people who then as a last resort take up arms. All this mandates doing away with the immunity provisions. In a functional democracy, people are supreme therefore their representative by implication should also enjoy supreme authority which necessarily includes the power to criticize higher judiciary. It is proposed that India and Pakistan should come out of past vestiges and reform the law of contempt on the pattern of America and England where criticism of judge does not amount to contempt. It is recommended that power of promulgation of rules of superior courts may be relegated back to the parliament so that effective checks can be ensured on the workings of superior courts. It is also in-consonance with separation of powers theory and as a result thing would be put in their proper perspective. This would also curtail the legislative tendencies as seen in Pakistan of the superior judiciary. Delegated legislation in Great Britain is controlled by the parliament and taking lead from the example of Britain such secondary legislation may be considered to be given in the hands of parliament in the interest of justice, equity and fair play. In Pakistan judicial independence has been taken to mean independence from everything under the sun. Thus judicial integrity has been compromised as malpractices have crept in due to absence of checks and balances on the Superior Judiciary. Integrity of judiciary can only be ensured if judicial immunities are kept to a minimum and transparency is guaranteed in appointment and removal process of superior court judges. Numerous other professionals such as physicians, attorneys and police officers' carryout their responsibility effectively with the threat of lawsuits ever present.2 To correct the anomaly, judges of superior courts must be subjected to extremely limited immunity so that accountability is ensured of every organ of the state. A review of other Commonwealth jurisdictions reveals that parliamentary oversight is now commonplace not only in the appointment of judges but also in their removal. It is therefore strongly recommended that such a manner should also be adopted in Islamic Republic of Pakistan. Islamic law has special reference in the context of Pakistan. Article 227 of the Constitution of Pakistan postulates that all laws promulgated must be in-accordance with Quran and Sunnah. A judge is to be removed on becoming fasiq meaning that he doesn’t obey the mandatory commandments of Allah. This is a mandatory provision in Islamic law only applicable to judges. Islam doesnot grant immunity to anyone except the Prophet of Allah (P.B.U.H). Everyone is to be judged as per his deeds. It is therefore proposed that during the elevation of judges they are to be checked whether they obey the mandatory commands of Allah and are imbued with the basic knowledge of shariah. Moreover, amendments should be made in the constitution of Pakistan which detail that judges will be liable for removal on becoming fasiq. Fasiq should interalia mean, pronouncing an erroneous decision which is not inconformity with commandments of Allah. Sharia doesnot favor granting absolute immunity to judges and there is liability in case of deviation from normal course of law as enforcement and upholding of law is a sacred duty for judges under Islamic law because of religious nature of the law in Islamic state.