Independence of the Judiciary

Alvina Ali

Alvina Ali

How can the judiciary be made independent?

The independence of the judiciary promotes the rule of law, constitutionalism,  fundamental rights, and democracy in a country. Our judiciary has passed through difficult times since the independence of Pakistan. It has survived frequent onslaught on its independence by the executive and the legislature. The constitution and political set up of any country provide an environment to establish the independence of the judiciary. Pakistan’s constitution of 1973 provides in Article 2A that “the independence of the judiciary should be fully secured.” [1]

In the Sharaf Faridi case,[2] the SC explained that it is the duty of every judge to decide matters in conformity of facts and his understanding towards law without any influence and pressure. The court further observed that the judiciary has its own independent existence distinct from the executive and the legislature. In the Sh. Riazulhaq case,[3] the court held that a basic principle of the constitutional system of governance is the independence of the judiciary.

It is the constitutional responsibility of the judiciary to make sure the constitutional doctrine of separation of powers is sustained through institutional checks and balances between different organs of the state. It is the duty of the judiciary to enforce the constitution and protect the fundamental rights and freedoms of citizens as provided under the constitution. To do so, the judiciary needs to be independent and efficient in quickly addressing and resolving public claims and grievances. The written constitution of a state essentially contains provisions to guarantee judicial independence through procedure regarding the appointment and removal of judges and security of the tenure of the judicial office.

The judiciary is intrinsically an outcome of the constitution; it became a strong foundation in Pakistan to promote preeminence of the constitution as well as the rule of law. [4] Nevertheless, in Pakistan, neither the judiciary as an institution nor the judges are fully independent. There seems to be a gradual decline in the standards of competence and the integrity of judges. The system of judicial accountability is inefficient. The opinion of Lord Actonis remarkable in this context: “power tends to corrupt, and absolute power is corrupt absolutely.” Therefore, it is mandatory for the judicial independence that the judges remain accountable for their performance and judicial conduct so that they could decide cases without counter-stroke or reprisals from other institutions of the state. The judges should be impartial and listen to the disputed parties without any fear and favour.

Impartial justice is also emphasized in Islam.Allah says in the Quran, “Indeed, We have revealed to you, [O Muhammad], the Book in truth so you may judge between the people by that which Allah has shown you. And do not be for the deceitful an advocate.” (Chapter 4: Verse 105)

To summarize, the judiciary is the custodian of the fundamental rights of the people. The independence of the judiciary is a must for the protection of fundamental rights and to ensure the observance of the rule of law in Pakistan. This independence of the judiciary can be ensured through an objective and inclusive process of judicial appointments. The terms and tenure of judicial service need to be improved and secured so that judges could dispense justice without any influence from the executive and the legislature.

[1] Article 2A, The Constitution of Islamic Republic of Pakistan, 1973.

[2] Government of Sindh v. Sharaf Faridi, PLD 1994 SC105.

[3] Sh. Riazulhaq v. federation of Pakistan through Ministry of Law, 2013 PLC (CS) 1308.

[4]Justice (R) Dr. Javid Iqbal,  ‘The Independence of Judiciary’, page 1.

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