Balancing power: fixed term for CJP?

The government plan to amend the Constitution to introduce a fixed tenure for the Chief Justice of Pakistan (CJP), together with changes to judicial councils and judges' transfer, has sparked widespread debate. Proponents argue that the constitutional package, specifically the segment on fixed tenure, would lead to greater judicial stability and enhance the judiciary's independence. However, this proposal raises significant concerns as regards the doctrine of the separation of powers, judicial autonomy, and the potential for political interference in the judicial process.

To understand the implications of such a change, it is important to examine theoretical perspectives as well as examples from other countries.

At the heart of the debate over a fixed tenure for the CJP lies a tension between judicial independence and the desire for institutional stability. Montesquieu's separation of powers theory highlights the judiciary's role as a counterbalance to the executive and legislative branches, essential for safeguarding democracy. Montesquieu warns that concentrating power or weakening judicial independence could erode liberty. In the light of this theory, a fixed tenure risks shifting power towards the executive, particularly if appointments become politically influenced.

Moreover, judicial independence is essential for maintaining public trust in the rule of law. Legal theorists like Ronald Dworkin stress that a fixed term for the chief justice could expose the judiciary to political influence, weakening its impartiality and public confidence in its decisions. The principle of judicial independence is further supported by Alexander Hamilton's argument in the essay Federalist No. 78, where he has famously stated that the judiciary is the "least dangerous" branch of government because it has "no influence over either the sword or the purse". Hamilton argues that lifetime appointments, or at the very least long and secure tenures, were necessary to protect judges from the vagaries of politics. While Pakistan's chief justice does not serve for life, the seniority principle has served as a safeguard against political interference by ensuring that appointments are not easily manipulated by the government.

From a structural functionalist perspective, the judiciary's role is to interpret laws and uphold constitutional principles. A fixed tenure for CJP could undermine this by reducing the flexibility of the current seniority-based system, which allows the judiciary to adapt naturally. Functionalist theorists like Talcott Parsons argue that institutions must be responsive to societal needs, and a rigid tenure might impose unnecessary constraints. Additionally, institutionalism suggests that courts are complex institutions, and a fixed-term for CJP could disrupt informal hierarchies, weakening the judiciary's internal dynamics and diminishing the top judge's authority.

In India, which shares legal heritage with Pakistan, the Chief Justice is appointed based on seniority and serves until the mandatory retirement age of 65, often resulting in short terms. Despite this, India's judiciary has maintained its independence due to strong institutional traditions. A fixed tenure could disrupt this balance by introducing political influence into judicial appointments. In contrast, the US appoints its Chief Justice for life, insulating the judiciary from political pressures but raising concerns about long-term entrenchment. Both models emphasise that judicial independence relies more on robust institutional safeguards than on the length of tenure. If Pakistan adopts a fixed tenure for its Chief Justice, there is a risk of politicising judicial appointments, potentially weakening the judiciary's role as an impartial check on executive power.

While the idea of introducing a fixed tenure for CJP may seem well-intentioned, it could have unintended consequences for judicial independence and the separation of powers principle. Examples from India and the US show that the key to a strong judiciary is not fixed tenures but ensuring freedom from political influence. For Pakistan, the priority should be preserving the judiciary's autonomy rather than implementing reforms that could undermine its integrity.