ROLE OF JUDICIARY IN GOOD GOVERNANCE
By:
NOOR ALAM KHAN
Advocate
Supreme Court of Pakistan &
Chairman, Voice of Prisoners
Member KPK Bar Council, Peshawar
Many of you have
traveled from other regions of the world but you may be facing the challenges
similar to those I will discuss today. I hope my messages will resound beyond
our boundaries.
It is a pleasure
to be here today to share some opinion on the following topic:
1. ROLE OF GOOD GOVERNANCE
2. JUDICIAL ACTIVISM/ACCESS TO JUSTICE,
3. AN
INDEPENDENT/PROPERLY RESOURCED JUDICIARY,
The Executive, Legislature,
and Judiciary are the three organs of the State. The Executive executes the
Laws, Legislature makes the laws and the Judiciary plays the vital role to
interpret the law as well as in adjudication. Keeping an eye as a check tool
over the entire system of administration, especially when a law enacted by
Executive should not be taken away the fundamental rights bestowed upon the
citizens.
As the executive
authority take the decision and make a law and implement it for good
governance.
There is no settlement
on the characterization of good governance. All the definitions, however, have
some common rudiments which make it possible for us to make a structure of good
governance.
UNDP has defined
governance as under: "Governance is viewed as the exercise of economic,
political and administrative authority to manage a country's affairs at all
levels. It comprises mechanisms, processes and institutions
through which citizens and groups articulate their interests, exercise their
legal rights, meet their obligations and mediate their differences".
In the words of
the World Bank, the governance is defined as the method in which the power is
exercised in management of a country's economic and social resources. The World
Bank has identified three aspects of governance:
(i)
Form of political
regime;
(ii)
The process by
which the authority is exercised in the management of a country's resources for
development;
(iii)
The capacity of
government to formulate and implement policies.
The term
Judicial Activism has been defined differently by legal scholars. In order to
arrive at a conclusion it would be significant to refer different legal
sources. In the Harper Collins Dictionary of American Government and Politics,
the term Judicial Activism has been defined as the making of new public
policies through the decision of judges. Blacks Law
Dictionary defines it as a philosophy of judicial decision making whereby the
judges allow their personal views about public policy, among other factors, to
guide their decisions....
1. The
theory of good governance, which includes rule of law, accountability, human
rights, sustainable economic and social development have developed over a
period of time and illustrate heavily on the Islamic teachings, the thoughts of
the Greek philosophers as well as the growth of the British judicial system.
2. Judiciary
has played a very important role in the growth of this concept and need of good
governance.
3. In
4. Steps
are called for towards eliminating the perceptions of corruption in lower level
judiciary and delays in going through all levels of judiciary.
5. That
superior judiciary in
Despite a Constitutional form
of government which stands for rule of law and protects the rights of citizens
the Pakistani democracy has not been competent to remove the exploitation and favouritism against the poor. Although there have been
several legislative efforts but due to their poor implementation they couldn't
produce the required results. The government has not been able to ensure the
economic and social well-being of its citizens. The poorer economic conditions
have led to economic exploitation of poorest elements of Pakistani people. The
people are forced to work at low wages, employ their children to increase their
income and engage in bonded labour. Millions are
denied survival wages despite the minimum wage act on the Statute. Children
still work, in carpet weaving or .glass factories and serve as domestic help
despite laws against child labour.
Perhaps the most
important one, because it underlies all the others - is good governance. Not
just effective or efficient governance, but good governance: that system of
rules, rule-making, and rule-enforcement that regulates the performance of
people and standard of society, upholds the law, and delivers timely justice to
all - equally and fairly.
Many factors
contribute to building and maintaining good governance. These include, among
others, a Government that follows the rules and makes no exceptions; a legislature
that focus on its core mandate of adopting wise laws; regulators that are not
swayed by special interests; independent auditors that properly review public
accounts; a bureaucracy that proudly and professionally serves the public, and
private sector that respects and obeys the law.
Of many factors,
a judiciary that holds the law above everything ... and everyone ... is
indispensable. Good, consistent jurisprudence based on law, as well as
predictable and time-efficient resolution procedures are necessary for that
sense of predictability, transparency, and accountability.
At a very
fundamental level, people need to know their individual rights will be upheld
even against the most powerful authorities. An independent judiciary with
integrity can do this; apply the law fairly and dispassionately, without regard
to the personalities or powers involved. A strong judiciary, with the power to
review acts of Government, can protect the citizenry from unlawful acts of
Government and hold government officials accountable for their graft,
corruption, and abuse of power; and do so in a timely manner. For the poor and
powerless, especially, procedures can spell the difference between
7 years of life lost to incarceration for a crime not committed, and 7 years of
building a solid career or watching a child grow up. Thus, we need to approach
reforms with an eye to improving access to justice for the poor.
We recognize
that these challenges can be more effectively met when there are constitutional
and operational guarantees of judicial independence; when sufficient financial
resources are predictably and transparently provided to the judiciary; when
competent judges are transparently appointed, assured security of tenure and
provided a living wage; when judgments can be rendered, enforced, and reviewed
without danger to the person, family, or property of the judges; and when
discipline within the bench itself is subject to the rules of due process.
Under this
philosophy, judiciary looks an active role in addressing the human rights
issues. In a number of noteworthy cases, the courts set precedents which
heralded new role of judiciary in social policy-an area that was earlier
considered to be the sole domain of Executive and the Legislature.
The judicial
activism may also reflect issues of regime, or at least governmental
legitimacy, where the political class is seen as being too mired in
unacceptable levels of corruption and graft.
In the face of
democratic deficit of representative government the law and invocation of the
law through judicial institutions can become an instrument of civil society
empowerment. Courts act as an equalizing institution through which social
grievances can be addressed which otherwise do not have access to political
channels of representation.
The Supreme Court of Pakistan played no less important role
in the empowerment of civil society organizations. As a result dozens of NGO's
have crept up each specializing in different areas such as human rights,
minority rights, environmental issues etc. As soon as these organizations
observe that a wrong has been committed, they bring it to the attention of
Supreme Court through petition. In view of their interest and involvement the
matter comes promptly before Supreme Court for scrutiny, Judicial Activism has
produced a positive impact on Israeli society. It has made government more
responsive to the needs of the people. It has discouraged Executive and
Legislature from enacting laws which severely impair human rights. It has
empowered civil society and made security forces accountable. It has
contributed significantly in setting better standards of governance.
CONCLUSION
Through Judicial Activism judiciary fills the gap created by
a failed political practice. Through the exercise and use of judicial review
and public interest litigation the judiciary acts as a protector of rule of
law. It strives to make sure that other branches of government do not step
beyond their legal authorization and the citizens get their due share in
governance. By assuming an active role the judiciary seeks to check the
executive, empower civil society and secure the political, economic and civic
rights of all citizens. All of this is not possible with passivity but only
through what is known as Judicial Activism.
Although through its meddling, the judiciary came to the save
of a large number of people but still its impact on the working of government
departments and quality of governance in general has been limited. There is a
need to take out a study so as to find ways and means for effective
implementation of the decisions of the superior courts. There is also a need to
raise awareness that good governance can't be achieved unless the executive and
legislature also respond to the needs of the people. The civil society working
together with other groups and the citizens may consider to
force the executive and legislature to do their part and work for the
economic and social well being of their people.