http://www.dailytimes.com.pk/default.asp?page=2011\09\26\story_26-9-2011_pg3_2 Monday, September 26, 2011
COMMENT: Judicial freedom but with responsibility —Ishaque Malik Judicial independence is of supreme importance for an impartial and effective judiciary but judicial accountability is also a complement to it. The cause of justice can be served only through an ideal blend of the two Judicial independence is required to be nurtured and preserved by any just and fair society for at least four basic reasons: one, to fulfil the most basic need of a society to have an impartial and independent body to protect citizens’ legal rights and to resolve their disputes without being influenced by any internal or external factors; two, the doctrine of separation of powers requires that the judiciary should be independent of the two other pillars of state, i.e. the executive and the legislature; three, the rule of law requires judicature to be independent and four, for ensuring human rights and fundamental freedoms to the members of society. Judges must, thus, be made free and autonomous of all internal and external factors that may restrain their ability to work without fear or favour. The concept of judicial freedom gives birth to the ideas of judicial accountability since no independence could be unqualified and unrestrained. The most basic argument in favour of judicial accountability is to prevent the judges and their institution from abuse of authority as judicial independence is not an end in itself but only a means to a larger end and it is to be ensured that the purpose of that larger end is properly served. One other logic for judicial accountability is that the judicial system and judges are supposed to function in accordance with all sorts of written and unwritten instructions, rules, laws. Justice is administered within the ambit of laid down parameters and principles. It, therefore, becomes imperative to see how devoutly adherence to those instructions has been observed by the members of the judiciary. Thirdly, the concept of accountability is a natural corollary to exercise of power. The authority that exercises a power must be made accountable to some other authority to assess how far the exercise of given powers succeeded in obtaining the desired results for which it was intended. Fourthly, the role of the judiciary during the past century has tremendously enlarged due to the expansion of judicial outreach in welfare states, rising awareness and consequent enforcement of social rights, increasing public interest litigation and greater resort to judicial review. This enlargement of the judicial role has enhanced the procedural and substantive responsibilities of the judges as well as the need for judicial responsibility and accountability. There are two main obstacles to judicial accountability: the concept of judicial immunity and res judicata (a matter adjudged). The concept of judicial immunity derives its strength from the old principle that “the king can do no wrong”. Even the concept of sovereignty appeared irreconcilable to the idea of state responsibility. There, however, prevailed another equally strong tradition in some ancient states, like Athens, that held every public functionary accountable for each of the acts performed in that capacity. There is, however, an emerging trend to shun the concept of state immunity and resort to a democratic concept of accountability. The second obstacle to judicial accountability is the principle of res judicata. The judicial decisions that attain finality, res judicata, become laws unto themselves and an act that creates the law cannot be against the law. So, any wrong decision that has attained finality could not serve as a basis for the accountability of the judge or judges who pronounced such a decision. Some countries have countered this obstacle by providing opportunity to the aggrieved to challenge such decisions, though with some restrictions. The biggest of all the questions is how to give effect to judicial accountability in such a way that the independence of the judiciary is not compromised. In fact, it is a very delicate aspect that needs very careful handling as it runs the risks of spilling over to encroachment on judicial freedom, which is entirely essential to achieve the ultimate objective of serving the cause of the free and fair dispensation of justice to the citizenry. The judges could neither be made subservient to the political executive or legislature, nor could they be held above the law. There is a need to strike a beneficial balance between the independence of the judiciary and its accountability by subjecting judges to scrutiny to improve judicial conduct and performance and to ensure judicial accountability without reducing their insulation from intrinsic and extrinsic forces. Legal and political science experts have devised different models and typologies of judicial accountability, dividing it into legal, political and social categories. All these models are useful for various societies and situations and for scholastic studies. In general terms, however, it is convenient to observe that the structural dimension of judicial independence should be strengthened by ensuring that the appointment process of judges should be multi-faceted, judicial immunity to the extent of judicial pronouncements must be preserved, security of remuneration and tenure of office should be ensured, removal of judges should be only on the grounds of incapacity and misbehaviour and that too after due process and through a sound legal forum and finally, political non-affiliation of the judges should also be ensured through setting up proper institutional arrangements. The behavioural side of judicial independence could be put to scrutiny by employing such devices as to ensure checks on the conduct of judges without damaging the essential spirit of their freedom and autonomy. Some of these steps could include framing a reasonable code of conduct and discipline for the judges and observing its compliance, maintaining record of competence of the judges, limiting term of office instead of life-time appointments, public declaration of assets possessed by the judges, watched by international organisations such as the International Commission of Jurists, Transparency International, etc. In a nutshell, judicial independence is of supreme importance for an impartial and effective judiciary but judicial accountability is also a complement to it. The cause of justice can be served only through an ideal blend of the two, which may ensure freedom but with responsibility. The writer is a student at Lee Kuan Yew School of Public Policy, National University of Singapore. He can be reached at ishaq...@hotmail.com [Non-text portions of this message have been removed] ------------------------------------ Post message: prole...@egroups.com Subscribe : proletar-subscr...@egroups.com Unsubscribe : proletar-unsubscr...@egroups.com List owner : proletar-ow...@egroups.com Homepage : http://proletar.8m.com/Yahoo! Groups Links <*> To visit your group on the web, go to: http://groups.yahoo.com/group/proletar/ <*> Your email settings: Individual Email | Traditional <*> To change settings online go to: http://groups.yahoo.com/group/proletar/join (Yahoo! ID required) <*> To change settings via email: proletar-dig...@yahoogroups.com proletar-fullfeatu...@yahoogroups.com <*> To unsubscribe from this group, send an email to: proletar-unsubscr...@yahoogroups.com <*> Your use of Yahoo! Groups is subject to: http://docs.yahoo.com/info/terms/
