It is worth noting however, that the procedure by which judges are appointed is only one of the ways in which the independence of the judiciary may be undermined. There are, broadly speaking, two spheres of influence over judicial decisions. The first is the ‘Public’ sphere and the second is the ‘Private’ sphere. Within the ‘Public’ sphere of influence, there are two categories of actors. The first is that category which can loosely be described as the Executive: e.g. the Presidency, (in Pakistan) the Military, and various Police agencies, etc. It is this category which has historically been most problematic in Pakistan insofar as judicial independence is concerned. Its overwhelming influence over judicial decisions, particularly during times of democratic suspension, was critical in undermining the credibility of significant decisions. The second category of actors within the ‘Public’ sphere are legislative actors e.g. the Prime Minister, the respective Chief Ministers of each Province, parliamentarians and senators, etc.
Interference in judicial appointments is one of the means by which the ‘Public’ sphere can influence the course of judicial decisions. Yet another means by which the ‘Public’ sphere can influence judicial decisions is by meddling with the compensation regime of judges. This tactic was employed recently by the Awami National Party, an ally of the ruling Pakistan Peoples Party. In Pakistan, this tactic is particularly potent, since judicial compensation may only be modified by statutory intervention. A third, more direct tactic which may be employed by the ‘Public’ sphere, is the enactment of legislation which either seeks to curtail the powers of the judiciary or create roadblocks for them. The newly enacted Contempt of Court Act, 2012 (which is currently sub judice before the Supreme Court) is a recent example. The statute is clearly an attempt to buy time for the newly appointed Prime Minister, Mr. Raja Parvez Ashraf, once he is charged with contempt of court for refusing to write the infamous Swiss Letter. The final means by which the ‘Public’ sphere can attempt to influence the judiciary is by threat of sanction for a real or alleged breach of guidelines and rules on ethics and accountability. This tactic was employed by Pervez Musharraf in 2007 when he attempted to dismiss the current Chief Justice on grounds of corruption.
As significant as ‘Public’ sphere influence over judicial decisions, is the threat of influence by the ‘Private’ sphere. The ‘Private’ sphere of influence is in many ways far more insidious, by virtue of being more subtle. When court time is disproportionately monopolised by wealthy litigants bringing high-worth cases, public confidence in judicial independence is undermined. Such monopolisation creates barriers to ‘access to justice’ for the poorest litigants. This is particularly the case in Pakistan, where an acute shortage of judges and a heavy backlog of cases has led to the hopeless situation where court time has become a valuable commodity in and of itself. The means by which such monopolisation is affected is common knowledge: wealthy litigants, by dint of having the capacity to pay higher fees, have access to ‘senior counsels’ – established litigators who can seek greater indulgence from the bench.
Since the ‘cause-list’ system by which the superior courts of Pakistan regulate access to court-time is rife with bureaucratic inefficiency and logical inconsistencies, the discretionary basis on which the system is bypassed by judges, leads to a disproportionate advantage being granted to such ‘senior counsels’. In turn, since poorer litigants do not have access to ‘senior counsels’, they often spend decades pursuing a decree, often for the whole process to be frustrated by the death of the parties themselves. Although there is nothing inherently unethical about the use of this discretion in any given case, when seen as a whole, it undermines the perception that judicial action is equally available to both richer and poorer litigants.