Judicial independence

In Pakistan, neither the judiciary as an institution nor the individual judges are independent.

Shabbir Ahmad Khan December 24, 2012
The writer is a PhD Scholar at West Virginia University in the US

On November 18, Sardar Mohammad Raza, a former Supreme Court judge, wrote a very persuasive and insightful article on the concept of  ‘independence of judiciary’ in The Express Tribune. He mainly focused on the role and conduct of an independent judge. I’m a great admirer of Honourable Justice Sardar Raza. However, in the literature of judicial politics and law, there is a difference between the independence of an ‘individual judge’ (decisional independence) and the independence of judiciary as an institution. Chief Justice Michael Wolff of the US state of Missouri in 2006 rightly said, “Independence, quite frankly, is both overused and misunderstood. It should not be interpreted, either by the public or by any judge, to mean that a judge is free to do as he or she sees fit.”

In the literature, a truly independent judiciary has three major characteristics. First, it is impartial, i.e., judicial decisions are not influenced by a judge’s personal interest in the outcome of the case. Second, judicial decisions, once rendered, are respected, specifically by the executive. And third, the judiciary is free from interference, i.e., by parties to a case or by others with an interest in its outcome. There is also a consensus among the scholars on certain factors ensuring the existence of judicial independence which include formal, legal and constitutional safeguards like impartial appointment process of the judges, their removal through impeachment only, security of their tenure (lifetime tenure as in America), rigorous qualifications or experience, financial autonomy and a delicate relationship of the judiciary with other political and legal forces in the country.

As far as the decisional independence of a judge is concerned, the judiciary as an independent institution also ensures individual independence. However, it is not true that judges make decisions in isolation. Lee Epstein and Jack Knight in their book, The Choices Justices Make (1998) and Lawrence Baum, in Judges and Their Audiences: A Perspective on Judicial Behaviour (2006) focus on the issue of how individual judges make their decisions. According to them, judges are human beings and they seek respect, popularity, approbation and approval from those around them including colleagues, lawyers, policy groups, media, branches of government and the public. Baum also challenges the prevailing conventional wisdom theory in judicial behaviour that judges at higher levels seek only to promote good laws and good policy. In fact, Baum’s argument is a continuation of the scholarly rejection of the traditional legal models of judicial behaviour.

In Pakistan, neither the judiciary as an institution nor the individual judges are independent. The formation of different benches for the different cases in the superior courts and the ratio of dissenting opinions are crude examples. The jurists and scholars also make the distinction between judicial independence and judicial activism. Independence of judiciary is the hallmark of liberal democracies. On the other hand, our judicial process is based on arbitrary principles, from the appointment and removal of judges to the process of deciding the cases. And particularly, the absolute powers of the chief justices to grant cases to different benches. The suo-motu power of judges is another example of arbitrary nature of the court procedure. The ‘rule of four’ is applied in the US Supreme Court to grant certiorari, i.e., four justices out of a total of nine decide by vote whether or not to hear a case.

I humbly disagree with Honourable Justice Sardar Raza regarding the appointment process of judges in the past. Had the appointment process in the past been so honourable or impartial, the history of our courts would have certainly been different. Judges should neither appoint nor remove judges. They should be appointed for a lifetime unless impeached by parliament or till they opt to retire. There is also no accountability of judges of superior courts. The Supreme Judicial Council, the sole constitutional forum for the accountability of the judges, is itself composed of the judges of superior courts. The judges also elevate themselves as chiefs of superior courts due to Al Jihad Trust decision. Judicial independence and judicial accountability cannot be separated because these are two sides of the same coin.

Published in The Express Tribune, December 25th, 2012.


Manoj Joshi India | 10 years ago | Reply

Judicial independence is essential for the smooth running of any democracy and with it judicial accountability too is needed. However, most of the nations in today's world have a written constitution that is if not rigid semi--rigid hence, on many fronts tussles or frictions between the executive and judiciary or legislature and judiciary do arise. This is a part of the ongoing process of any democracy hence has to be handled from time to time with care, caution and earnest in order to ensure the successful running of the democratic system. The appointment of judges if done by a panel constituted by the judiciary which is approved by the president of that nation in this case Pakistan or for that matter as the case might be with any other nation that too would be the ideal way of appointment. The appointments done by the judicial panel should be approved of in Toto by the president of that nation which is to be a mere administrative formality. Judicial accountability is off course becoming more and more essential with the changing times in order to check absolute authority. The United States of America has had a rather rigid constitution wherein amendments have taken long periods to have been implemented unlike the United Kingdom that has an written flexible constitutions that has functioned on the basis of conventions. To arrive at any conclusion as to how judiciary need to function in a nation is much dependent on the prevailing social, cultural, economic and political conditions of any country/nation. Pakistan or for that matter India, Sri Lanka, Bangladesh and the other nations of South Asia have adopted the system of democracy and hence their functioning or style of democracy at work has been different from the West especially The United States of America and United Kingdom. The US and UK have both been different as far as the system of democracy is concerned while the former has a presidential form of governance the latter has a parliamentary form of governance. US focussed more on a strong judiciary vis-a-vis a strong legislature unlike UK that has a strong parliament (legislature) besides the US is a federal government while UK a unitary form of government hence the centre state relationship as one finds in the US does not apply in case of UK. Pakistan as well as India have both been a parliamentary democracy wherein the union legislature enacts all the laws as is the case in UK however both the nations are a republic and not a constitutional monarchy like UK. The legislature has a major role in Pakistan as well as India and the judiciary too has an equally important role that of being the interpreter of the constitution. The Supreme Court plays this role as the custodian and interpreter of the constitution. Pakistan and India constitutionally do share certain similarities as far as the judicial system is concerned. Nevertheless during this process of evolution of democracy within these nations of South Asia certain modifications as well as aberrations along with distortions have occurred which has affected and made the models of democracy within these two nations different and distinct in themselves. The basics have however remained as they ought to have been. Judiciary should therefore enjoy an independence with the accountability factor however the procedural of removal of any judge should be only through impeachment and impeachment alone.

Mirza | 10 years ago | Reply

A balanced and common sense Op Ed by a law scholar. Thanks for that. Judges cannot be independent. They are bound by the constitution and not what they think. You are right about the appointment of judges in the US. However, they all are appointed by the president alone. Each appointment is debated openly in the senate and interrogated. Only upon the approval by the senate the judges can assume the office. Many of them cannot satisfy the senate and are rejected. While in Pakistan they appoint themselves and give extensions to each other.

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