Judicial independence is a cornerstone of a fair and impartial legal system
here are three branches of the government: executive, judiciary and the legislature. The judiciary interprets the law, resolves disputes and defends the constitution. The independence of the judiciary is one of the basic features of our constitution provided for in Article 2A. Article 2A was the Objectives Resolution of 1949 which was later inserted in the constitution of 1973 through Presidential Order No 14 of 1985.
The independence of the judiciary means dispensation of justice without fear or favour; keeping the scales even in any dispute between the rich and the poor, the mighty and weak, the government and private individuals since much injustice can result from loading the scales in favour of the state and against the citizen.
Judicial independence is of vital importance in a democracy. Judges are meant to be impartial and independent of all external pressure. Those appearing before them should have the confidence that their cases are decided fairly and the judges are free of any improper influence. Such influence could come from any number of sources. It could arise from improper pressure by the Executive, Legislature, individual litigants, media, self-interest or other judges, in particular, senior judges.
Judicial independence is a cornerstone of a fair and impartial legal system. It protects individual rights, promotes the rule of law, preserves the constitution, ensures fair trials, prevents abuse of power, ensures public confidence in the legal system, maintains separation of power and ensures accountability.
In an independent judiciary, the judges are free to decide honestly and impartially and guarantee a fair trial for everyone by providing the opportunity of a fair hearing. The judges do not decide the cases according to the likes and dislikes of the establishment or the government; they dispense justice without any threat, inducement or direct or indirect influence. Judicial independence also protects the judges and decision makers from improper influence. All disputes are decided fairly, according to law in open courts.
Judicial independence is the shield to protect and secure fundamental, legal and vested rights. Judicial independence ensures and secures the tenure of judges. Judges cannot be removed from office for passing judgments a government does not like.
Independence of judiciary is one of the basic features of rule of law. Without judicial independence there can be no rule of law. The rule of law does not depend solely upon the courts and law enforcement agencies; it also requires a general climate of order and discipline. It postulates an attitude according to which the bulk of the population is inclined to obey the law irrespective of whether the law enforcement agencies are on the watch or not. For every right, there is a correspondence duty. A nation wherein people are conscious only of their rights and not of their duties would soon find itself in a state of anarchy.
In an independent judiciary, the judges are free to decide honestly and impartially and guarantee a fair trial to everyone by providing the opportunity of a fair hearing. The judges do not decide the cases according to the likes and dislikes of the establishment or the government.
Using the power of judicial review, the courts invalidate executive actions and legislation that are violative of fundamental rights, unconstitutional or against the law.
An abuse of judicial independence can lead the public to disrespect the judiciary, disobey its orders and resort to extra-legal mechanisms to secure justice and relief. When this happens, rule of law is subverted and the judiciary loses public confidence.
Accountability is essential for judicial independence. Without accountability, independence of judiciary is a meaningless myth. It is through judicial accountability that an impartial administration and dispensation of justice is achieved. Judicial accountability concerning the performance of the judicial functions is ensured through appeals, revision and petitions to the High Courts. But no appeal is provided against the judgments of the Supreme Court, except through a review petition which, too, has a very limited scope. A judgment of the Supreme Court is accepted not because it is infallible but because it is final.
Delay in the disposal of cases is a standing stigma on our judicial system. This understandably creates disenchantment and causes anguish to those who knock at the courts’ door to seek prompt relief. Justice delayed in a large number of cases is as good as justice denied. Where is the justice if a young spouse seeks matrimonial relief and gets it after the period of youth is past?
The real test of judicial independence lies in the judge overcoming their personal beliefs, preferences and perceptions when deciding a particular case. If a judge is unable to do so, they should recuse themselves from hearing the case.
Judges with prejudiced minds are not independent as they cannot overcome their biases. Prejudice is a perverse approach indicating the absence of a judicious mind. Judges cannot be diverted from their duty by extraneous considerations and influence, neither by the hope of reward or fear of penalties; nor flattering compliments.
The role of the Bar for the independence of the judiciary and the rule of law cannot be overstated. The profession provides legal services to the community. The Bar gives shape and meaning to the words of the statute and adds flesh and blood to their dry bones.
The Bar should act in the best interest of the administration of justice and rule of law because if justice is administered in a biased manner then the reputation of both the Bar and the Bench is affected. Without the power of the purse or sword, the Judiciary relies on public trust and confidence to assure compliance with its ruling. Public confidence is thus dependent on integrity of the judges. When judges are unfairly criticised, the Bar should defend them.
The writer is an advocate of the Supreme Court of Pakistan. He is based in Peshawar. He can be reached at firstname.lastname@example.org