Separation of powers and the independence of the judiciary

By Mr. Muneer Malik,
President of the Supreme Court Bar Association of Pakistan

(Following is the text of Mr. Muneer Malik’s speech which he delivered on May 26, 2007 when the Supreme Court Bar Association held a seminar on "separation of powers and judicial independence". The suspended Chief Justice Mr. Iftekhar Choudary was the chief guest of the seminar).
SEPARATION OF POWERS

Welcome to this defining moment in the defining moment of our lives. The great American jurist, Benjamin N. Cardozo said, ‘The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by’. We are all caught in that same tide today and only our own actions now will determine whether we sink or swim. Those that do not learn from the past are condemned to re-live it. After all, history is the transformation of tumultuous conquerors in to silent footnotes. (Ai khakh nasheeno uth baitho wo waqt kareeb aa pohancha hai- Jub taj uchalay jain gai jub takht girain jain gay. Barthay bhi challo kuttay be challo, bazooo be behot hain sur be behot, up daairay manzil he pay daalainay jain gay”. Hum daikhaayn gay hum daikhaayn gay.)

The theme of our Seminar, ‘Separation of Powers and the Independence of the Judiciary’ has always been an age-old favourite of jurists and constitutionalists. But only today, is a true appreciation of its paramount importance being felt throughout the land.

The struggle for the separation of powers and the independence of judiciary is of ancient origin. One of its early foot-soldiers was Sir Edward Coke, Chief Justice of England from 1613 to 1616. Coke was not always an angel. As a lawyer, he had remained Attorney General of England and prosecuted many cases against innocent people who had incurred the displeasure of King James I. Those poor innocents had no hope of justice and a fair trial. The judiciary was spineless and completely under the influence of the King and his courtiers. The historian Macdowell has described this state of affairs as follows:

‘If a Judge in those days had frankly charged a Jury according to the facts of the situation it would have been in such terms as this: ‘If you acquit the prisoner, I shall be dismissed and you will go to prison. Consider your verdict.’

But this bitter experience of blatantly rigged trials left Sir Edward Coke a changed man. He spent the rest of his life wiping off that stain from his reputation. When appointed to the Bench, his judicial independence brought him into direct conflict with the government. King James I was in the habit of interfering with judgments passed by the courts of law; asserting that he was entitled to do so in exercise of his royal prerogative. When Coke refused to yield this power he was summoned by King James I and reminded that the King was supreme and that the King’s word was final in all matters. Coke was not to be cowed down. He bluntly replied that ‘His Majesty was not learned in the laws of England’ and that it was only the Judges who could interpret the law. As far as the question of the King’s supremacy was concerned, he said: ‘The King himself should be under no man, but under God and the Law.’ These words heralded the beginning of England’s transition from a nation under the rule of men to a nation under the Rule of Law.

Thereafter, the King wrote to all of the Judges asking them to refrain from hearing and determining a particular matter until the King's pleasure was known. When Coke proceeded with the hearing in disregard of the King's instructions, all the Judges were summoned to a meeting with the King. Under pressure, the other Judges buckled down and conceded to the King’s directions; but Coke stood firm in denying the King's authority to interfere with judicial proceedings. For his impertinence, Sir Edward Coke was dismissed as Chief Justice. Later, at almost seventy years of age, he was thrown in jail. But, today, his legacy forms the bedrock of the Constitutions of every civilized nation.

The doctrine of separation of powers rests upon the recognition that the concentration of absolute power in one man or one body will inevitably lead to exploitation and tyranny. U.S. President Abraham Lincoln recognized the temptation of even good men to succumb to the temptation of too much power when he said: ‘Nearly all men can stand adversity, but if you want to test a man's character, give him power.’ The fundamental premise of our Constitution is never to put anyone to that test. The framers of our Constitution were well aware of Lord Acton’s dictum, ‘Power tends to corrupt; and absolute power corrupts absolutely’. Therefore they delegated the different powers of the State to different organs namely; the executive, the legislature and the judiciary. Each of them has separate and strictly delineated functions.

This trichotomy of powers, as an essential feature of our Constitution, has been repeatedly emphasized by our superior Courts. In his oft-quoted judgment in the celebrated Sharaf Faridi case (PLD 1989 Karachi 404), Saleem Akhtar J. (then a Judge of the Sindh High Court) observed: ‘In a set-up where the Constitution is based on trichotomy of powers, the Judiciary enjoys a unique and supreme position within the framework of the Constitution as it creates balance amongst the various organs of the State and also checks the excessive and arbitrary exercise of power by the Executive and the Legislature… The jurisdiction and the perimeters for exercise of powers by all three organs have been mentioned in definite terms in the Constitution. No organ is permitted to encroach upon the authority of the other and the Judiciary by its power to interpret the Constitution keeps the Legislature and the Executive within the spheres and bounds of the Constitution.’ He further stated: ‘Therefore justice can only be done if there is an independent Judiciary which should be separate from the Executive and not at its mercy or dependent on it.’

Similarly, our Supreme Court has frequently stressed the importance of an independent judiciary, particularly in reference to Article 175 of the Constitution. It observed, inter alia, in the Al-Jehad Trust case (PLD 1996 SC 324) and the Mehram Ali case (PLD 1998 SC 1445) that ‘the independence of judiciary is inextricably linked and connected with the process of appointment of Judges and the security of tenure and other terms and conditions,’ and that the ‘framers of the Constitution were mindful of the fact that in the absence of security of tenure no Judge can function impartially and independently.’ In the absence of an independent judiciary that is able to freely exercise its judicial functions and enforce the law without interference, the Fundamental Rights guaranteed to citizens under our Constitution are illusory and not worth the paper they are written on. Saleem Akhtar J held as much in the case of Govt. of Balochistan v. Azizullah Memon (PLD 1993 SC 341) when he observed: ‘Separation of judiciary is the corner-stone of the independence of judiciary and unless the judiciary is independent, the fundamental right of access to justice cannot be guaranteed.’

Now the main danger facing Pakistan today is the tendency towards monopolization and concentration of all state power in one body. This lust for unrivalled power and ultimate authority destroys all those institutions that form the foundations of a modern civilized state. Baron de Montesquieu, one of the first proponents of the doctrine of separation of powers, was of the view that: ‘In the infancy of societies, the chiefs of state shape its institutions; later the institutions shape the chiefs of state.’ Charles De Gaulle had paraphrased it somewhat differently when he said “that some countries need an army but some armies need a state”. What is at stake here? Is it the future of my two children, Sheherezade and Ehsan or the children or grandchildren of every one sitting in this room and beyond? I beg you, I implore you, that let every man look into his inner self and ask “Is my conscience on a higher plane than 30 pieces of silver?” Pakistan needs to make that transition urgently. We must strengthen our institutions so that we are ruled by law and not by men. We can no longer afford to remain an infant state. A failure to move on could be fatal.

Revolutions, in every age stem from the same causes. However, the American Revolution was unique in that the revolutionaries actually listed the causes of the Revolution in their Declaration of Independence. I was taken aback to find the following passage in the American Declaration of Independence (remember, this is back in 1776): ‘The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States… He has made Judges dependent upon his will alone, for the tenure of their offices and the amount of their salaries’. If we want to ward off similar revolutions in different parts of our country, if we want to avoid a further break-up of the nation, if we want to prevent a decline into anarchy; we must learn our lessons from history.

Fortunately, our nation has woken up to this peril. There is unanimity within the legal community and the general public that the ideals of the separation of powers and independence of judiciary are worth preserving. That the Rule of Law is not merely an empty slogan; but a reality worth striving towards. Montesquieu had warned, ‘The tyranny of a prince in an oligarchy is not so dangerous to the public welfare as the apathy of a citizen in a democracy.’ We have averted the greater danger. We are only left with the lesser threat. And now that the people are woken from their slumber and apathy; their will shall prevail. As Justice Sandra Day O’Connor of the U.S. Supreme Court pointed out, ‘Constitutions and statutes don’t protect judicial independence, people do.’ But the people Justice Sandra Day O’Connor referred to were not simply members of the general public. She was also referring to people who practice at the Bar. She was also referring to the people who man the Bench. Judges, like the rest of us, also form a part of Pakistan’s civil society. There is a mutual covenant between all sections of civil society to uphold the Rule of Law and secure the independence of the judiciary. Any section that betrays this mutual trust, in addition to injuring the others, also imperils itself.

Benjamin Cardozo had ventured to reflect that judges do not live in ivory towers protected against tides in the affairs of men. Moreover, unlike the executive branch of government, the judiciary has no coercive apparatus to ensure the enforcement of its writ. Rather, its strength, its prestige, its power and hence its very existence, rests solely upon the confidence reposed in it by the public. That confidence is not to be lightly risked. I dare to dream the impossible dream and to run where the brave dare not go. This is our quest- no matter how hopeless no matter how far. Remember that every long journey begins with a single step. My Lord, the Chief Justice who would have thought that after the 9th of March you would in our midst today in this very auditorium presiding over this seminar? May the wind be always at your back and may the road rise up to meet you and may Allah Almighty hold you in the palm of His hand. It does not take rocket science to understand the no army, no matter of which breed, can stop the march of an idea the time for which has come.

Pakistan Zindabad, Pakistan Paindabad!

Muneer A. Malik
President, Supreme Court Bar Association
Islamabad, 26 May 2007