THE retirement of the former chief justice brings to close another milestone in the history of the judiciary.
The judiciary has accomplished many feats in recent years, including the consolidation of its sphere of influence, the championing of the cause of human rights, and successfully taking on political leaders as well as military officials in a bid to hold all accountable. That said, the actual struggle for an independent judiciary is yet to be won.
Judicial independence encompasses the idea of the judiciary, as an institution, remaining independent of the executive and legislature so as to ensure its impartiality in decision-making and insulation from any external influence. However, judicial independence has always been analysed from the prism of an external attack on the institution.
Hence, most case law that has developed in relation to the concept has dealt with methods to insulate and protect the judiciary from attacks by the executive, legislature or even political figures.
What has seldom been discussed is the fact that the very essence of judicial independence stems not from insulation from external aggression alone, but from internal introspection aiming to reform the perceived and actual institutional deficiencies present therein. Such introspection is pivotal for a truly independent judiciary in as much as such measures shall increase the credibility of the judiciary in the eyes of the public, and afford it greater ability to resist any external attack on its independence.
There are a variety of areas in which the judiciary will need to focus in order to better itself. However, three problem areas require immediate redressal. Firstly, perceived corruption in the judicial apparatus hits out at the very idea of judicial independence. Although the pervasiveness of actual corruption may be miniscule compared to the perceptions that inevitably shape public opinion, it is necessary at the outset to make efforts to dispel any such impressions, if they exist.
One step in this direction would be for proceedings/inquiries against judges or judicial officers to be made as open and transparent as possible. That said, and considering that many complaints could in fact be frivolous or an attempt to bring into disrepute a certain judge, it may be prudent that in such cases, as determined by the inquiry itself, only final decisions be made public as opposed to the transcripts of the complete proceedings.
Furthermore, once an inquiry confirms wrongdoing, prompt action must be publicly taken in accordance with its findings and recommendations.
Additionally, the manner and nature of appointments to the lower judiciary also require streamlining in certain provinces, if not all. For example, in Sindh, the process by which judges are appointed to the lower judiciary is governed by the Sindh Judicial Services Rules, 1994.
Although the rules do delineate the general qualifications needed to apply to the said posts, they appear to be silent about the standards and qualities being evaluated by the Provincial Selection Board, constituted by judges of the high court, in accepting or rejecting candidates. The rules are also silent on the detailed syllabus to be studied for purposes of succeeding in the written examinations.
This in essence allows the Provincial Selection Board to exercise a great deal of discretion whilst choosing certain candidates over others, and also puts candidates at a disadvantage as to what is expected of them. It was perhaps in light of this that upon the establishment of the Islamabad High Court, the Islamabad Judicial Service Rules, 2011, were enacted whereby a clear syllabus was provided as well as what was expected of candidates in their respective interviews.
Another matter of importance, and somewhat conjoined with the issue of appointments as well as perceived corruption, is that of providing attractive salary packages to judges of the lower as well as higher judiciary so as to insulate them from financial pressures, as well as to further attract competent candidates with integrity.
Although significant progress has already been made on this front in recent times, it cannot be denied that the salary structures of the judiciary still require urgent revamping to achieve a more robust judicial outfit.
Finally, the judiciary must also look to develop a framework within which suo motu powers are to be exercised. Such unfettered powers violate the very ideals of judicial independence which espouse institutional independence over that of any one individual.
In essence, such unfettered powers dilute the ability of the institution as a whole to chart a course of action for itself as opposed to a course being charted out by one individual for the institution. It is in light of this that the judiciary would do well to channel or limit the said powers in a manner whereby fundamental rights may be protected without giving too much discretion to any one individual to pick and choose cases for judicial review or scrutiny.
Judicial independence is a concept which has an external as well as internal component. Although most jurisprudence has been founded upon external aggression seeking to stifle judicial impartiality, little attention has been paid to the influence of internal reform on the independence of the institution. This is where the focus must now lie.
In fact, it is about time that all realise that the judiciary of today faces a greater threat from lack of introspection as opposed to an external attack on its independence. If truth be told, the fight for an independent judiciary shall be fought and won within, that is, in the accountability of one’s own actions.
The writer is a lawyer.
